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In re Compensation of Traner

Court of Appeals of Oregon

March 25, 2015

In the Matter of the Compensation of Emma R. Traner, Claimant.
v.
Emma R. TRANER, Respondent SAIF CORPORATION and State Operated Community Programs, Petitioners,

Argued and Submitted June 5, 2014.

Workers' Compensation Board 1104729.

David L. Runner, Special Assistant Attorney General, argued the cause and filed the briefs for petitioners.

Julene M. Quinn argued the cause for respondent. With her on the brief was Kryger Alexander Carlson PC.

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

OPINION

Page 1249

[270 Or.App. 68] DEVORE, J.

In this workers' compensation case, SAIF petitions for judicial review of an order of the Workers' Compensation Board (board), which concluded that, after claimant initiated a claim for a new or omitted medical condition under ORS 656.267(1), SAIF failed to formally accept or deny that request within 60 days as required by ORS 656.262(7)(a). Although the board ultimately determined that the claim actually involved only a symptom of previously accepted conditions, the board awarded attorney fees under ORS 656.262(11)(a) based on SAIF's unreasonable delay in accepting or denying what was claimed to be a new or omitted condition. On review, SAIF contends (1) that it was not required to respond to a claim later found to involve only a symptom; (2) that no attorney fees were permitted when no penalty was assessed; and (3) that SAIF's failure to respond timely or properly was not " unreasonable," given an uncertain state of the law. For the reasons that follow, we affirm.

The dispositive facts are not in dispute. Claimant compensably injured her right shoulder in 2007 while operating a floor-buffing machine. SAIF initially accepted a right shoulder strain, and later added right-shoulder tendonitis and a partial rotator cuff tear. The claim was closed in December 2008 but was reopened in July 2009 to address worsening tendonitis, which required two shoulder surgeries. In a post-surgery follow-up report, the attending physician, Dr. Yoshinaga, described worsening right-shoulder " arthralgia."

On March 9, 2011, claimant sent a letter to SAIF requesting acceptance of " right-shoulder chronic arthralgia." SAIF asked Yoshinaga about the arthralgia. He responded that arthralgia meant " pain," was " merely a descriptor of symptoms, and [was] not an objective diagnosis."

On April 12, SAIF sent claimant a letter responding that the request for acceptance of arthralgia " does not qualify as a claim under ORS 656.267 because [the] request seeks the acceptance of a body part, procedure, and/or symptom, which is not a new or omitted medical condition." The letter added that claimant could clarify her request in [270 Or.App. 69] writing and that it would then be processed. SAIF included a notice of hearing rights.

Claimant requested a hearing before an administrative law judge (ALJ). The ALJ deemed SAIF's April 12 letter to be a " denial" of a claim, and the ALJ determined that the denial was justified. Based on Yoshinaga's explanation of arthralgia, the ALJ found that arthralgia was a symptom of claimant's other accepted shoulder conditions and the resulting two surgeries. Therefore, arthalgia was not itself a new or omitted condition.

Claimant appealed to the board. The board affirmed the ALJ's finding that arthralgia was a symptom, not a new or omitted condition. Nonetheless, the board determined that SAIF had unreasonably delayed responding to the claim for arthralgia. The board observed that, under ORS 656.267(1), claimant was required to " clearly request formal written acceptance of a new [or] omitted medical condition * * *." Whether or not ultimately successful, she had done so, and, in response, SAIF was ...


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