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In re Compensation of Kiltow

Court of Appeals of Oregon

June 3, 2015

In the Matter of the Compensation of Gaylen J. Kiltow, Claimant.
v.
SAIF CORPORATION and Portland Disposal & Recycling, Inc., Respondents Gaylen J. KILTOW, Petitioner,

Argued and Submitted May 7, 2014.

1103049. Workers' Compensation Board.

Ronald A. Fontana argued the cause for petitioner. With him on the briefs was Ronald A. Fontana, P.C.

Julie Masters argued the cause and filed the brief for respondents.

Before Duncan, Presiding Judge, and Egan, Judge, and Lagesen, Judge.[*]

OPINION

Page 787

[271 Or.App. 473] EGAN, J.

Claimant seeks review of an order of the Workers' Compensation Board (the board). Claimant was injured at work and the employer's insurer, SAIF Corporation, accepted a claim for a combined condition--a work-related foot injury and pre-existing diabetes. SAIF later denied the claim, asserting that claimant's work injury ceased to be the major contributing cause of his combined condition. Claimant successfully argued that his diabetes was not a pre-existing condition that combined with his foot injury; rather, his was only a work-related foot injury. After a hearing, claimant obtained an ALJ order to that effect that became final. Regardless of that order, on reconsideration of the rating of claimant's permanent disability and his amount of compensation, the Appellate Review Unit of the Workers' Compensation Division of the Department of Consumer and Business Services (the ARU) determined that claimant's diabetes remained an accepted part of his claim. Subsequently, the board concluded that claimant's diabetes was not a part of his compensable injury. On judicial review, claimant now assigns error to the board's order, arguing that the board erred because--despite claimant's successful argument that his diabetes was not a pre-existing condition--the resulting order of the ALJ did not have the effect of removing claimant's diabetes from the claim. Claimant also argues that the ARU's order precludes this court from reaching the merits of this case.[1] On that issue, SAIF responds that the ARU's order was not preclusive, because the ARU's determination is not the sort of determination that has a preclusive effect. We affirm.

Claimant's procedural arguments both present questions of law. We review the board's order for errors of law.

Page 788

Liberty Northwest Ins. Corp. v. Stapleton, 192 Or.App. 312, 314, 84 P.3d 1116 (2004).

The facts are procedural. SAIF accepted claimant's claim as a combined condition--a " foot ulcer, plantar, left second metatarsal head area with subsequent cellulitis and [271 Or.App. 474] abscess formation combined with type II diabetes mellitus." Some months later, after determining that the work injury was no longer the primary cause of claimant's condition, SAIF issued a combined condition denial and closed the claim. At a hearing on that closure, claimant argued that his condition was not a combined condition because his diabetes was a " predisposition" not a " preexisting condition." ALJ Fulsher agreed and issued an order stating " [t]he denial *** is set aside and the claim is remanded to SAIF for processing in accordance with the law." There was no appeal of ALJ Fulsher's order. In response, SAIF issued a modified notice of acceptance informing claimant that his claim remained " open and accepted for: [f]oot ulcer, plantar, left second metatarsal head area with subsequent cellulitis and abscess formation." Claimant took no action in response to the modified notice of acceptance.

Some months later, SAIF issued a new notice of closure. Claimant requested reconsideration, disputing the rating of his permanent disability and the amount of compensation. Irrespective of claimant's arguments and ALJ Fulsher's order, the ARU entered an order on reconsideration setting aside the notice of closure as premature, stating that " [i]t is noted [ALJ Fulsher's] Opinion and Order contains a discussion about the conditions not really combining; however, that discussion does not negate the fact that [SAIF] accepted the 'combined with type II diabetes mellitus' condition in this claim." Consequently, the ARU reasoned that SAIF was required to present evidence that claimant's diabetes was medically stationary before closing the claim. SAIF requested a hearing on the ARU's order on reconsideration, then withdrew the request and allowed the order to become final before issuing a new notice of closure that slightly increased claimant's whole person impairment and work disability awards. Claimant requested reconsideration of that notice of closure. The ARU issued a second order on reconsideration finding that closure was premature for the same reasons stated in its first order on reconsideration. SAIF requested a hearing on the ARU's second order on reconsideration.

At that hearing, claimant argued that the doctrine of issue preclusion prevented SAIF from relitigating whether [271 Or.App. 475] the ARU erred in its first order by including type II diabetes among the accepted conditions for which closing information was required. ALJ Rissberger ruled that issue preclusion did not apply and determined that SAIF complied with ALJ Fulsher's order when it issued the modified notice of acceptance. ...


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