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In re Compensation of Hartvigsen

Court of Appeals of Oregon

May 9, 2018

In the Matter of the Compensation of Melissa Hartvigsen, Claimant.
v.
SAIF CORPORATION; Greenway Chiropractic; and Adecco, Inc., Respondents. Melissa HARTVIGSEN, Petitioner,

          Argued and submitted January 26, 2016.

          Workers' Compensation Board 1106234, 1104605

          Edward J. Hill argued the cause and fled the brief for petitioner.

          Jerald P. Keene argued the cause for respondent ADECCO, Inc. With him on the brief was Oregon Workers' Compensation Institute, LLC.

          Julie Masters argued the cause and fled the brief for respondents SAIF Corporation and Greenway Chiropractic.

          Before DeVore, Presiding Judge, and Armstrong, Judge, and James, Judge. [*]

          [291 Or.App. 620] Case Summary: Claimant seeks review of an order of the Workers' Compensation Board upholding employer's denial of a new/omitted medical condition claim for deQuervain's tenosynovitis and declining to award an assessed attorney fee to claimant for gaining employer's acknowledgment that the condition is compensable and encompassed within the original acceptance of a claim for "wrist strain."

         Held: Claimant is entitled to an assessed fee under ORS 656.308, because employer originally denied responsibility for claimant's deQuervain's tenosynovitis and claimant's attorney was instrumental in gaining employer's acknowledgment of responsibility for that condition.

          [291 Or.App. 621] ARMSTRONG, J.

         The question in this workers' compensation case is whether claimant, whose new/omitted medical condition claim for bilateral deQuervain's tenosynovitis has been denied, is entitled to an assessed attorney fee for gaining employer Adecco's acknowledgment that the condition is compensable and is encompassed within Adecco's original acceptance of a claim for "wrist sprain." Adecco had initially denied responsibility for the condition, on the basis that it was a new condition within the responsibility of claimant's subsequent employer, but ultimately acknowledged responsibility for the condition and that it was compensable and encompassed within Adecco's previous acceptance of a claim for "bilateral wrist sprain." The Workers' Compensation Board nonetheless ruled that claimant is not entitled to an assessed attorney fee for the reason that the denial of the claim was proper, because the condition, encompassed within the original claim, is not "new" or "omitted." Claimant contends that the board erred in ruling that claimant is not entitled to attorney fees under ORS 656.308(2)(d) or ORS 656.386(1) for gaining employer's acknowledgment of responsibility for the condition. We review the board's order for substantial evidence and errors of law, ORS 656.298(7); ORS 183.482(8)(a), (c), and to determine whether the board's analysis comports with substantial reason. See Hamilton v. Pacific Skyline, Inc., 266 Or.App. 676, 338 P.3d 791 (2014). We conclude that the board erred in declining to award attorney fees under ORS 656.308 and therefore remand for the board to make that award.

         The relevant facts are undisputed. Claimant worked for Adecco at a call center and then in data processing. In September 2010, claimant notified Adecco that she was experiencing pain in both wrists. Adecco referred claimant to a Concentra Medical Center, where Dr. Task diagnosed bilateral wrist strain/sprain. Claimant filed a workers' compensation claim, which Adecco accepted on September 17, 2010, as a claim for nondisabling bilateral wrist sprain.

         Shortly after the acceptance, claimant returned to Concentra for further treatment, where she saw Dr. Carver. [291 Or.App. 622] Carver modified the original diagnosis to include bilateral wrist strain, bilateral wrist tenosynovitis, forearm strain, and bilateral lateral epicondylitis.

         Adecco did not accept tenosynovitis, strain, or epicondylitis, but maintained its acceptance of "wrist sprain" and changed the status of the claim to "disabling." In December 2010, Adecco closed the claim for bilateral disabling wrist sprain without an award of permanent disability. Claimant did not challenge the closure of the claim and it became final.

         Claimant continued to experience symptoms and to receive treatment for her wrists. In January 2011, claimant began a new job with Greenway Chiropractic. In May 2011, claimant began seeing Dr. Kane as her attending physician, who diagnosed bilateral wrist sprain and bilateral deQuervain's tenosynovitis, [1] and treated the conditions with osteopathic manipulation. In May 2011, claimant filed a Form 827 with Adecco, asking for acceptance of a new or omitted medical condition of bilateral ...


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