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In re Compensation of Robles

Court of Appeals of Oregon

April 25, 2018

In the Matter of the Compensation of Felix V. Robles, Claimant. Felix V. ROBLES, Petitioner,
v.
SAIF CORPORATION, William T. Boyer, and Marcine Boyer, Respondents.

          Workers' Compensation Board 1200189

         On petitioner's petition for reconsideration fled January 3, 2018. Opinion fled December 20, 2017. 289 Or.App. 441, 407 P.3d 981 (2017).

          Julene M. Quinn for petition.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Reconsideration allowed; former opinion modified and adhered to as modified.

         Case Summary: Claimant seeks reconsideration of a Court of Appeal's opinion, Robles v. SAIF, 289 Or.App. 441, 407 P.3d 981 (2017), in which the court affirmed the board's order with a citation to Brown v. SAIF, 361 Or. 241, 391 P.3d 773 (2017), contending that the court failed to address an assignment of error that is not controlled by Brown.

         Held: Claimant's assignment of error, in which he contended that the board erred in failing to treat L5-S1 radiculopathy and L5-S1 radiculitis as within the scope of SAIF's acceptance, is not controlled by the Supreme Court's opinion in Brown. The court allowed reconsideration and concluded that the board reasonably interpreted the parties' stipulation and the notice of acceptance to constitute an acceptance of the radiculopathy and radiculitis only as symptoms of a combined condition, and that the resolution of that combined condition meant that the combined condition claim could be denied.

          [291 Or.App. 459] LAGESEN, P. J.

         Claimant has filed a petition for reconsideration of our per curiam opinion on remand from the Supreme Court, Robles v. SAIF, 362 Or. 38, ___ P.3d ___ (2017), affirming the board's order with a citation to Brown v. SAIF, 361 Or. 241, 391 P.3d 773 (2017). Robles v. SAIF, 289 Or.App. 441, 407 P.3d 981 (2017). We allow reconsideration to review an assignment of error not controlled by Brown. We conclude that the board did not commit legal error and that its order is supported by substantial evidence, ORS 183.482(8)(a), (c). We therefore adhere to our prior decision to affirm the board's order.

         Claimant injured his back at work, and SAIF accepted a lumbar strain. Claimant requested that SAIF modify its acceptance to include symptomatic unstable isthmic spondylolisthesis at L5-S1, radiculitis L5-S1, radiculopathy L5-S1, and a lumbar sprain. SAIF was deemed to have denied the additional conditions, and claimant requested a hearing. The parties then reached a settlement agreement providing:

"SAIF Corporation agrees to accept the following conditions: a combined condition between claimant's lumbar strain and his pre-existing spondylolisthesis at L5-S1 causing L5-S1 radiculopathy and L5-S1 radiculitis."

         The settlement agreement was approved by an administrative law judge, and claimant's request for hearing was dismissed. SAIF issued a notice accepting "lumbar strain combined with pre-existing spondylolisthesis causing L5-S1 radiculopathy and L5-S1 radiculitis."

         SAIF then issued a notice of closure of the claim, stating that "medical information indicates that presently your accepted injury is no longer the major contributing cause of your combined lumbar condition[.]" See ORS 656.262 (6)(c). Claimant did not dispute that the originally accepted lumbar strain had resolved and was no longer the major contributing cause of the combined condition. But claimant contended before the Workers' Compensation Board that, by stipulation, SAIF had also separately accepted conditions of radiculopathy and radiculitis, which had not resolved and [291 Or.App. 460] which therefore could not be denied. The board agreed with SAIF's contention that the radiculopathy and radiculitis had been accepted only as symptoms of a combined condition consisting of the lumbar strain and the preexisting spondylolisthesis, and that the resolution of that combined condition meant that the combined condition claim could be denied. The board cited SAIF's notice of acceptance in support of its finding that the "otherwise compensable injury" component of the accepted combined condition was the lumbar strain and did not include separate conditions of radiculopathy and radiculitis, but did not separately discuss the parties' stipulated settlement. Having concluded that the medical evidence established that the combined condition of lumbar strain and preexisting spondylolisthesis had resolved, the board upheld SAIF's denial.

         Claimant sought judicial review, assigning error to the board's conclusion that the "otherwise compensable injury" was the accepted lumbar strain, and also to the board's failure "to consider the accepted L5-S1 radiculopathy and L5-S1 radiculitis when it determined that the compensable injury was no longer the major contributing cause of the combined condition." In our original per curiam opinion citing Brown, we overlooked the fact that the second issue is not resolved by Brown. Claimant properly has ...


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