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In re Compensation of Camacho

Court of Appeals of Oregon

June 18, 2014

In the Matter of the Compensation of Marcelino Camacho, Claimant. MARCELINO CAMACHO, Petitioner,
v.
SAIF CORPORATION and PRONTO STAFFING SERVICES, Respondents

Argued and Submitted April 15, 2014.

Workers' Compensation Board. 1101741.

Julene M. Quinn aruged the cause for petitioner. With her on the briefs was Kryger Alexander Carlson PC.

Holly C. O'Dell argued the cause and filed the brief for respondents.

Before DeVore, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

OPINION

[263 Or.App. 648] LAGESEN, J.

Claimant seeks judicial review of an order of the Workers' Compensation Board (board); the order affirmed an administrative law judge's (ALJ) order upholding SAIF Corporation's denial of his injury claim for low-back and thoracic strains incurred while moving loaded pallets using a manual

Page 1243

pallet jack.[1] The board concluded that claimant had not demonstrated that his low-back and thoracic strains were a " compensable injury" under ORS 656.005(7).[2] In reaching that conclusion, the board did not afford statements made by claimant to his medical providers for the purpose of diagnosis and treatment the weight required by ORS 656.310(2).[3] In addition, the board discredited claimant's statements about the cause of his injury on the ground that they were inconsistent, without considering evidence in the record--a statement by claimant describing the injury that was admitted into evidence but not translated from Spanish to English--that may have tended to prove or disprove the apparent inconsistency. Because of the board's misapplication of ORS 656.310(2), because we cannot determine [263 Or.App. 649] whether the board's finding is supported by substantial evidence in the light of claimant's untranslated statement, and because the board did not have the discretion to disregard otherwise probative evidence that had been admitted into the record simply because it was in Spanish, we reverse and remand for further proceedings consistent with this opinion.

I. BACKGROUND

In early 2011, while employed at Pronto Staffing Services, SAIF's insured, claimant sought chiropractic treatment at the Woodstock Chiropractic Clinic for mid- and low-back pain. According to his medical records, claimant reported to Dr. Steinke that he had immediately felt pain when, 11 days earlier, while working, he

" was unloading pallets off a manual forklift and putting them on a trailer. The pallets weigh approximately 70-80 lbs. While lifting the 3rd pallet w/both hands in front of him, he felt low back [pain] & felt a 'pop.'"

(Emphasis added.) At the same time, Steinke and claimant completed the Workers' Compensation Division Form 827, " Worker's and Physicians Report for Workers' Compensation Claims." On that form, claimant reported that he had been working for " Bob's Metals" when he experienced the injury. The section of the form directing claimant to " [d]escribe accident" contains a handwritten statement in Spanish. Claimant signed that section of the form, thereby certifying that the information that he was providing was true to the best of his knowledge.

Claimant's treating doctors at Woodstock Chiropractic recommended full medical release from work due to the injury from February 15 to March 1, then modified work duties from March 2 to March 16 and, finally, a full return to work on March 17. Thereafter, claimant began seeing Dr. Heitsch on March 24, 2011. Heitsch's medical records reflect that claimant reported that he was injured while he

" was unloading a semi box trailer using a pallet jack to move pallet loads of boxes 2/4/11. As he neared completion of the task he pulled on the jack and experienced

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a pop in [263 Or.App. 650] his left lumbar area with associated sharp ...

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