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In re Compensation of Scott

Court of Appeals of Oregon

December 31, 2014

In the Matter of the Compensation of Jackie A. Scott, Claimant. Jackie A. SCOTT, Petitioner,
v.
LIBERTY NORTHWEST INSURANCE CORPORATION; and Northwest Clinical Registry, Inc., Respondents

Submitted November 6, 2013.

Workers' Compensation Board. 1100306.

Brian R. Whitehead filed the brief for petitioner.

David O. Wilson filed the brief for respondents.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 221

[268 Or.App. 326] EGAN, J.

The question in this workers' compensation case is whether claimant, who was medically stationary on an underlying and compensable low-back claim, was nonetheless entitled to begin receiving temporary disability benefits on an accepted claim for an omitted medical condition. We vacate and remand for reconsideration the Workers' Compensation Board's order concluding that claimant was not entitled to them.

The pertinent facts are undisputed. While working for Liberty Northwest's (Liberty) insured as a certified nursing assistant on January 29, 2007, claimant suffered a work-related injury to her back. In March 2007, Liberty accepted a claim for an " L4-5 disc bulge." Claimant underwent three surgeries for her work-related injury in 2007. On September 24, 2007, Liberty issued a modified notice of acceptance in which it accepted " Left L4-5 disc protrusion/extrusion."

On September 18, 2008, claimant's attending physician, Dr. Craig McNabb, found that claimant was medically stationary. McNabb restricted claimant to modified work and, at the time of the hearing, claimant had not been released for regular work.

Liberty issued a notice of closure in October 2008, awarding claimant time loss through September 18, 2008, as well as permanent disability. The permanent disability award was subsequently reduced on reconsideration by the Appellate Review Unit of the Department of Consumer and Business Services (department), and that award has become final.

On November 20, 2008, claimant made a written request for acceptance of an omitted medical condition described as " arachnoiditis." Liberty arranged for claimant to be examined by Dr. Chen Tsai in January 2009. Tsai concluded that, based on a January 2008 MRI scan of claimant's low back, claimant did not have arachnoiditis, but did have scarring at the level of the surgeries. McNabb concurred with Tsai, concluding that claimant's compensable back condition had caused the scarring, as well as a loss of range of motion, discomfort, and dysfunction. In a report of June 5, [268 Or.App. 327] 2009, McNabb noted that claimant had " significant permanent partial disability" due to scarring and nerve damage. On October 7, 2009, McNabb opined that claimant was " ever going to get back to work."

Liberty denied the arachnoiditis condition, but the parties subsequently reached a stipulation relating to the omitted medical condition claim, which the board approved on October 13, 2009. The stipulation states that the denial of the claim for arachnoiditis is " affirmed," but that Liberty accepts an omitted condition claim for " surgical scarring."

In December 2009, McNabb sent a letter to Liberty stating that claimant's surgical scarring condition had been medically stationary since September 18, 2008. He added that the impairment that he had identified in his September 2008 report would not ...


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