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In re Compensation of Yi

Court of Appeals of Oregon

September 11, 2013

In the Matter of the Compensation of Minkyu Yi, Claimant.
v.
CITY OF PORTLAND, Respondent. MINKYU YI, Petitioner,

Argued and submitted on January 31, 2013.

Workers' Compensation Board 1004668.

Donald M. Hooton argued the cause and filed the briefs for petitioner.

Ian M. Leitheiser argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

Claimant seeks review of a Workers' Compensation Board order upholding employer's denial of claimant's combined-condition claim. Claimant contends that the denial should have been set aside on claim-preclusion grounds because employer denied the claim twice in the past, those denials were set aside, and the current denial is not based on any change in his condition following the litigation of either of the previous denials. We agree with claimant and reverse the board's order.

Claimant filed a workers' compensation claim after he suffered a lumbar strain at work on April 16, 2007. Medical examinations revealed that claimant's disability and need for treatment resulted from the lumbar strain combined with a preexisting degenerative disc disease. Employer issued a notice of acceptance for the combined condition, effective April 16, the date of injury. Two doctors--Dr. Thiessen, claimant's attending physician, and Dr. Young, an orthopedist--examined claimant and reported their conclusions to employer's claims examiner. Young, who had examined claimant on June 19, reported on August 7, 2007, that any continuing need for treatment would be attributable to the preexisting disc disease, but he did not specify a date on which the lumbar strain had become medically stationary. Thiessen reported about a week later that the lumbar strain had resolved between the end of May and mid-July.

On August 23, 2007, employer issued a denial of the claim's compensability on the ground that the lumbar strain was no longer the major contributing cause of claimant's disability. Employer listed the effective date of the denial as June 19, 2007--the date that Young had examined claimant.

Claimant requested a hearing, which was held in July 2008. An administrative law judge (ALJ) upheld the denial, but the Workers' Compensation Board set it aside because the doctors' reports did not support the conclusion that the lumber strain had ceased to be the major contributing cause of claimant's disability by June 19, 2007. The record does not include any indication that employer sought judicial review of the board's order.

In December 2009, employer denied compensability a second time. This time, employer stated that the lumbar strain "was no longer the major contributing cause of the disability or need for treatment of the combined condition by August 16, 2007"--the day after Thiessen reported that the lumbar strain had resolved.

Claimant requested a hearing. The ALJ set aside the denial on claim-preclusion grounds, reasoning that employer could have asserted its position at the July 2008 hearing on the first denial. Employer did not seek review of that ruling.

Claimant then asked employer to issue a notice of closure and to determine impairment. Employer contacted Thiessen, who recommended that claimant "be examined again to assess his current condition and obtain sufficient information to determine medically stationary status and the extent of any permanent disability associated with the combined condition." Thiessen referred claimant to Young for a closing examination.

Young examined claimant and reported that there had been "no change in his overall medical status * * *." Young added, "He is medically stationary. As I previously discussed when I saw him back in 2007, I think that his residuals are due to preexisting degenerative disk ...


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