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In re Compensation of Vukasin

Court of Appeals of Oregon

May 13, 2015

In the Matter of the Compensation of Dalice L. Vukasin, Claimant.
v.
LIBERTY NORTHWEST INSURANCE CORPORATION and Oregon Health & Sciences University (OHSU), Respondents Dalice L. VUKASIN, Petitioner,

Argued and Submitted, January 21, 2015

1101233, 1002645. Workers' Compensation Board.

Donald E. Beer argued the cause for petitioner. With him on the briefs was Merkel & Associates.

Rebecca A. Watkins argued the cause for respondents. With her on the brief was Sather, Byerly & Holloway, LLP.

Before Lagesen, Presiding Judge, and Flynn, Judge, and De Muniz, Senior Judge.

OPINION

[271 Or.App. 143] LAGESEN, P. J.

Claimant petitions for review of a decision of the Workers' Compensation Board (the board)[1] upholding respondent insurer's denial of compensability of medical services under ORS 656.245(1)(a). In particular, claimant seeks review of the board's determination that a 2009 ankle surgery was not compensably related to a 2000 workplace ankle injury; claimant also challenges the amount of her attorney-fee award. Because we conclude that substantial evidence supports the board's finding that claimant's surgery was not directed to any of her accepted conditions,[2] we affirm the order of the board. We reject claimant's challenge to the attorney-fee award without discussion.

On March 3, 2000, claimant sustained an ankle injury while at her job at Oregon Health & Sciences University (OHSU). As a result of that injury, OHSU's insurer ultimately accepted the following conditions:

Page 637

right distal tibiofibula sprain; synovitis; neuroma; fibular avulsion of the right lateral malleolus; right flexor hallucis longus tenosynovitis; and chronic tear of the right anterior talofibular ligament (ATFL). Although claimant was diagnosed with peroneal tendonitis on December 19, 2000, she did not request acceptance of that condition by the insurer.[3] [271 Or.App. 144] Claimant was also diagnosed with, and requested acceptance of, chronic instability of the right ankle, but that claim was denied and the insurer's denial was upheld by an administrative law judge.

Almost a decade later, in 2009, claimant requested authorization for surgery. The insurer denied the authorization on the ground that the surgery was to address right ankle instability, a denied condition. Notwithstanding the insurer's denial, claimant underwent the surgery. Following the operation, claimant's surgeon diagnosed her with right ankle instability, peroneal tendonitis, cavus foot, and gastrocnemius equinus, and claimant requested that the insurer amend the acceptance to include the latter three conditions. Her post-acceptance claim was denied.

Claimant sought review, challenging both the insurer's denial of her post-acceptance claim for peroneal tendonitis[4] and the insurer's compensability denial of the 2009 surgery. For support, claimant relied on the opinions of two medical experts: Dr. Sauvain, claimant's treating physician since 2005; and Dr. Veri, who performed the 2009 surgery. The insurer relied largely on the expert testimony of Dr. Yodlowski and Dr. Woodward.

With respect to claimant's first challenge, the board found that the March 3, 2000, workplace injury was the major cause of claimant's peroneal tendonitis diagnosed on December 19, 2000. However, the board further found that the peroneal tendonitis identified during claimant's 2009 surgery was not the same peroneal tendonitis with which she was diagnosed in 2000. The board explained:

" [T]he March 3, 2000 work accident was the major cause of peroneal tendonitis diagnosed on December 19, 2000. That pathology resolved. Claimant some time later developed a new peroneal tendonitis, perhaps as a result of ...

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