In the Matter of the Compensation of Melissa Hartvigsen, Claimant.
SAIF CORPORATION; Greenway Chiropractic; and Adecco, Inc., Respondents. Melissa HARTVIGSEN, Petitioner,
and submitted January 26, 2016.
Workers' Compensation Board 1106234, 1104605
J. Hill argued the cause and fled the brief for petitioner.
P. Keene argued the cause for respondent ADECCO, Inc. With
him on the brief was Oregon Workers' Compensation
Masters argued the cause and fled the brief for respondents
SAIF Corporation and Greenway Chiropractic.
DeVore, Presiding Judge, and Armstrong, Judge, and James,
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."
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
Or.App. 621] ARMSTRONG, J.
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.
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.
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.
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.
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,
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