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In re Compensation of Camarena

Court of Appeals of Oregon

July 23, 2014

In the Matter of the Compensation of Christopher J. Camarena, Claimant.

Argued and Submitted May 7, 2014

Workers' Compensation Board 120026M.

Holly C. O'Dell argued the cause and filed the briefs for petitioners.

Edward J. Harri argued the cause for respondent. With him on the brief was Philip H. Garrow.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Lagesen, Judge.


Page 342

[264 Or.App. 401] LAGESEN, J.

SAIF Corporation seeks review of orders of the Workers' Compensation Board holding that claimant is entitled to temporary disability benefits under ORS 656.278(1)(b) and awarding claimant attorney fees against SAIF under ORS 656.382(2) on reconsideration of the order awarding temporary disability benefits. SAIF contends that the board's finding that claimant's treating physician authorized temporary total disability " for * * * curative treatment" is not supported by substantial evidence in the record and that ORS 656.382(2) did not authorize the board to award attorney fees to claimant in connection with SAIF's request for reconsideration of the board's own-motion order awarding temporary disability benefits to claimant. We affirm.


Claimant suffered a compensable left ankle injury in March 2003 while at work for a company insured by SAIF. On August 15, 2011, claimant's left ankle gave out, and, as a result, claimant suffered an injury to his back. Claimant reported the injury to his attending physician, Dr. Vaughan, the next day. Claimant and Vaughan filled out a Workers' Compensation Division Form 827, " Worker's and Physician's Report for Workers' Compensation Claims." Vaughan made several findings on the form, including that claimant's mid back was injured, that it was tender, that spasms in his back were likely,

Page 343

that claimant's injury was not medically stationary, and that claimant was authorized for temporary disability with full release from work at least until claimant's follow-up appointment 10 to 14 days later. Vaughan also prescribed a treatment plan of " pain pills, muscle relaxers, ice, [and] heat." Vaughan did not write anything in the section of the form asking for a " [p]alliative care plan/justification."

Vaughan continued treating claimant for several months. At one of his appointments with Vaughan, on October 11, 2011, claimant and Vaughan completed another Form 827 in which claimant reiterated how he was injured, [264 Or.App. 402] and Vaughan again noted that claimant's injury was not medically stationary, continued the authorization of full release from work, and again left blank the section of the form for describing a palliative care plan. Vaughan referred claimant for an MRI on October 14, 2011, which showed no significant structural damage, but did indicate myofascial spasms.

A month later, Vaughan authorized claimant's return to light-duty work, prescribing " no heavy lifting (10 lbs or less). No prolonged standing. Limited bending and twisting." On November 21, 2011, Vaughan responded to a request for information about claimant's condition from SAIF. In her response, Vaughan noted that claimant was not yet medically stationary, that he had been referred to physical therapy, and that, if claimant continued to show no improvement, she was considering referring him to a physical medicine and rehabilitation specialist. On February 6, 2012, Vaughan released claimant " back to work at his own discretion."

Two days later, claimant began treatment with Dr. Wagner, a physical medicine and rehabilitation doctor, following a referral by Vaughan. Wagner noted that claimant's pain ranged from a four out of 10 to a 10 out of 10 and that his pain was alleviated by " sitting in his recliner, pain medications, chiropractic manipulation, massage, [and use of a] TENS unit." [2] Wagner further noted that he " would've expected the strain, by definition, to be resolved" by the time of the appointment. Wagner prescribed a SPECT scan [3] " to evaluate for a hot facet/capsular strain which may be the culprit for his delayed healing," but if that scan came back negative, Wagner believed that 12 visits for " aggressive rehabilitation" could bring about " case closure without permanent restrictions or permanent partial disability based on the accepted thoracic strain." Claimant went back [264 Or.App. 403] to Wagner for a follow-up on March 7, 2012, after getting the SPECT scan. According to Wagner, the SPECT scan results were " reassuring," which led Wagner to opine that claimant's ongoing pain was the ...

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