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In re Walker

Court of Appeals of Oregon

November 19, 2014

In the Matter of the Compensation of Joy M. Walker, Claimant.
v.
PROVIDENCE HEALTH SYSTEM OREGON, Respondent, Cross-Petitioner. JOY M. WALKER, Petitioner, Cross-Respondent, In the Matter of the Compensation of Joy M. Walker, Claimant. PROVIDENCE HEALTH SYSTEM OREGON, Petitioner, Cross-Respondent,
v.
JOY M. WALKER, Respondent Cross-Petitioner

Argued and Submitted Individually October 9, 2012

Page 92

Workers' Compensation Board. 0904145, 0902065. 1000400, 1000401

In A148303, on petition, remanded for an award of a penalty under ORS 656.262(11)(a)for employer's unreasonable delay in the acceptance of claimant's " major depression and panic disorder" ; affirmed on cross-petition. In A149021, affirmed on petition; reversed on cross-petition for assessment of a penalty under ORS 656.268(5)(e) and an attorney fee under ORS 656.382(1), for employer's unreasonable resistance to payment of compensation.

In A148303, Ronald A. Fontana argued the cause and filed the briefs for petitioner-cross-respondent.

In A148303, Theodore P. Heus argued the cause for respondent-cross-petitioner. With him on the briefs was Scheminske & Lyons, LLP.

In A149021, Theodore P. Heus argued the cause for petitioner-cross-respondent. With him on the briefs was Scheminske & Lyons, LLP.

In A149021, Ronald A. Fontana argued the cause for respondent-cross-petitioner. With him on the briefs was Ronald A. Fontana, P.C.

Before Nakamoto, Presiding Judge, Haselton, Chief Judge, and Wollheim, Senior Judge.

OPINION

Page 93

WOLLHEIM, S. J.

[267 Or.App. 90] This workers' compensation case involving a mental stress claim has a long and convoluted history, and has resulted in three decisions by this court to date, Walker v. Providence Health System, 254 Or.App. 676, 298 P.3d 38, rev den, 353 Or. 714, 303 P.3d 943 (2013) ( Walker III ); Providence Health System v. Walker, 252 Or.App. 489, 289 P.3d 256 (2012), rev den, 353 Or. 867, 306 P.3d 639 (2013) ( Walker II ); Joy M. Walker, 58 Van Natta 11 (2006), aff'd without opinion, Providence Health Systems v. Walker, 210 Or.App. 466, 151 P.3d 960 (2007) ( Walker I ). With this opinion, we add another decision to the list.[1]

We summarize the litigious procedural history of this case as it pertains to the issues raised in the two petitions for judicial review addressed in this opinion. Claimant was wrongfully disciplined at work in April 2004, after which she began to suffer symptoms of mental stress, including panic attacks, anxiety, chest pains, and headaches. In May 2004, claimant's employer, Providence Health System Oregon (employer), denied a claim for " stress/anxiety," and claimant requested a hearing. In July 2004, claimant's attending physician, Dr. Friedman, a psychiatrist, examined claimant and completed a report offering the opinion that claimant was suffering from a work-related condition, which she diagnosed as " major depression, single episode," and " panic disorder without agoraphobia." In October 2004, Friedman determined that claimant was medically stationary as of August 19, 2004, with ongoing medication management and no permanent impairment.

An administrative law judge (ALJ) and then the Workers' Compensation Board set aside employer's denial of claimant's mental stress claim and ordered it accepted, and this court affirmed the board's order without opinion on January 3, 2007, in Walker I.

[267 Or.App. 91] On July 24, 2007, employer accepted a claim for " disabling anxiety with depression." On August 13, 2007, after three additional years of treating claimant, Friedman modified her diagnosis, opining that claimant suffers from " major depression recurrent in remission with treatment and panic disorder without agoraphobia," with permanent impairment. Friedman included detailed impairment findings, determining that claimant was medically stationary as of August 13, 2007, the date of the report. On August 20, 2007, claimant requested a modification of the acceptance of the claim to include as omitted conditions " major depression and panic disorder without agoraphobia as diagnosed by Dr. Friedman in July 2004[.]"

Page 94

Employer requested and obtained two independent medical evaluations (IMEs). Dr. Wicher agreed with Friedman's diagnosis of major depressive disorder, but did not think that claimant had a panic disorder and opined that claimant was not suffering from any currently active mental stress disorder. Wicher also opined that claimant's depressive disorder was not work related. Dr. Glass examined claimant and also agreed with Friedman's diagnosis of major depressive disorder, recurrent and in remission, but Glass did not agree with Friedman that claimant suffered from panic disorder, and agreed with Wicher that claimant's depressive disorder was not work related and caused no impairment.

On October 19, 2007, employer declined claimant's request to amend the notice of acceptance to include " major depression and panic disorder without agoraphobia" as omitted conditions. Employer explained that " [i]nformation received indicates that your major depression and panic disorder did not arise out of your accepted condition nor in the course of your employment with Providence Health System."

On October 29, 2007, and again on January 28, 2008, Friedman reiterated her prior diagnoses and did not concur in the opinions of Wicher and Glass. On January 30, 2008, employer issued an updated notice of acceptance which described the accepted conditions as " disabling anxiety and depression," with a medically stationary date of August 19, [267 Or.App. 92] 2004, and closed the claim with no award of permanent partial disability.

Claimant requested reconsideration by the Appellate Review Unit (ARU), seeking a medically stationary date of August 13, 2007, and the assessment of a penalty under ORS 656.268(5)(e); but she did not request a medical arbiter exam. Friedman reiterated her findings in a report of February 22, 2008, and a deposition of March 4, 2008. The reconsideration process was limited to the then-accepted condition of " disabling anxiety with depression," and therefore did not address the denied condition of " major depression and panic disorder without agoraphobia." The ARU adopted Friedman's recommendations, determined a medically stationary date of August 13, 2007, and ordered an award of 35 percent unscheduled permanent partial disability, as well as a penalty under ORS 656.268(5)(e) (authorizing penalty of 25 percent of all compensation due when, on reconsideration, the director orders an increase of 25 percent or more of the amount of compensation due the worker and the worker is found to be at least 20 percent permanently disabled).

Employer challenged the order on reconsideration. The ALJ and, ultimately, the board, overturned the 35 percent disability award. Although the board did not find fault in Friedman's rating of impairment, the board explained that an award of impairment must result from a compensable injury or disease. ORS 656.214(1)(c)(A); OAR 436-035-0007(1). Friedman had rated claimant's impairment for the conditions of " major depression and panic disorder without agoraphobia," both of which had been denied at the time of the request for reconsideration. The board determined that, because only claimant's anxiety and depression had been accepted at the time of the order on reconsideration, only those conditions could be rated. Because there was no evidence rating impairment for those conditions, the board overturned the ARU's award of 35 percent permanent partial disability. However, the board upheld the medically stationary date of August 13, 2007.

In the mean time, claimant had filed a request for hearing on employer's denial of her omitted medical condition claim for major depression and panic disorder and, [267 Or.App. 93] in an order of September 9, 2008, ALJ Mills set aside that denial. After ALJ Mills's order, claimant requested claim closure, but employer had appealed ALJ Mills's order to the board and refused to close the claim, stating that no further processing would occur until there had been a final determination on ALJ Mills's order. Claimant requested a hearing on that refusal to close and, in an order of March 2, 2010, the board found that employer had unreasonably refused to close the claim and awarded a penalty under ORS 656.268(5)(d), to be based on the compensation determined to be due at claim closure,

Page 95

and a related attorney fee under ORS 656.382(1).

In an order of March 23, 2009, relating to employer's appeal of ALJ Mills's order, the board determined that employer was barred by issue preclusion from challenging the compensability of claimant's major depression and panic disorder, reasoning that the compensability of those conditions had been considered and finally determined in the litigation of claimant's original mental stress claim, terminating with this court's decision (without opinion) in Walker I. Thus, the board set aside employer's denial of claimant's omitted medical condition claim for " major depression and panic disorder," and ordered processing of the claim.

On March 25 and March 31, 2009, claimant's attorney filed requests for claim closure, based on Friedman's findings of impairment dating from her report of February 22, 2008, and deposition of March 4, 2008. On April 8, 2009, employer issued a notice of refusal to close the claim, stating that it needed an IME to determine the extent of any permanent impairment associated with claimant's accepted conditions. On April 13, 2009, claimant filed a request for hearing, seeking a penalty and attorney fees based on employer's refusal, as of April 8, 2009, to close the claim in response to claimant's requests for claim closure.

Meanwhile, on April 10, 2009, in response to the board's order of March 23, 2009, employer had issued a modified notice of acceptance, accepting a claim for " disabling anxiety and depression and acute major depression and panic disorder." (Emphasis added.)

[267 Or.App. 94] On April 14, 2009, claimant's attorney wrote to employer's attorney, complaining that the modified notice of acceptance was not consistent with the board's order:

" I object to the acceptance of claimant's condition as ' acute major depression and panic disorder' which would appear to be yet another attempt by [employer] to accept less than the actual condition diagnosed by Dr. Friedman which the Board has twice ordered [employer] to accept. In order to comply with existing orders, please see that [employer] issues an amended acceptance to include 'major depression and panic disorder' as previously requested and ordered."

Claimant also complained about employer's request for an IME:

" I also object to [employer's] 4/9/2009 notice of purported 'mandatory closing exam' to have psychologist Jack Davies supposedly evaluate claimant's permanent impairment. As you know, pursuant to ORS 656.245(2)(b)(C), only the attending physician may make findings of a worker's impairment for purposes of evaluating the worker's disability. As you know, Dr. Friedman has already issued detailed reports containing her findings on the extent of claimant's impairment and you have already cross-examined her about her reports and opinions. The Department long ago determined that Dr. Friedman's existing reports constituted sufficient information to determine the extent of claimant's permanent disability and that it determined claimant was due 35% permanent partial disability based on Dr. Friedman's findings. There really seems to be no reasonable basis for arguing that her findings are somehow insufficient information on which to base the often requested Notice of Closure. The Appellate Review Unit and Dr. Friedman both rejected the purported findings of no impairment by [employer's] earlier examiners, Drs. Glass and Wicher. Unless Dr. Davies were somehow to deviate from what I have observed in decades of practice, Dr. Davies can be expected to do what he usually does which is to opine that the injured worker has no impairment from any work related mental disorder and that any impairment she may have is due to pre-existing or other non-work related conditions. There is no reason to believe that Dr. Friedman would find Dr. Davies' predictable view of no impairment to be more accurate than her own view developed with the benefit of more than four [267 Or.App. 95] and one-half years of treating this claimant for her major depression and panic disorder."

Claimant filed with the Department of Consumer and Business Services (department) an " Objection to Notice of Acceptance" of

Page 96

" acute" major depression, stating that it " would appear to be yet another attempt by [employer] to accept less than the actual condition diagnosed by Dr. Friedman and which the Board has twice ordered [employer] to accept." On April 14, 2009, claimant also again requested issuance of a notice of closure and acceptance of an omitted condition of " major depression and panic disorder."

Over claimant's objection, employer scheduled an IME for claimant with Davies, a psychologist, on April 28, 2009.[2] On the instruction of her attorney, claimant did not attend. Claimant's attorney advised employer that, pursuant to ORS 656.245(2)(b) and (C), only the attending physician could make findings of impairment and that there was ...


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