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In re Compensation of Siegrist

Court of Appeals of Oregon

April 24, 2019

In the Matter of the Compensation of Kevin J. Siegrist, Claimant.
v.
Kevin J. SIEGRIST, Respondent. SAIF CORPORATION and CAF Enterprises, Inc., Petitioners,

          Argued and submitted August 7, 2018.

          Workers' Compensation Board 1502147.

          David L. Runner argued the cause and filed the briefs for petitioners.

          Julene M. Quinn argued the cause and filed the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Employer CAF Enterprises, Inc., and its workers' compensation insurer, SAIF, seek review of an order of the Workers' Compensation Board (board), in which the board ordered payment of claimant's costs in the amount of $1, 550. Under ORS 656.386(2)(d), when a claimant finally prevails against the denial of a claim, the board may order payment of the claimant's "reasonable expenses and costs for records, expert opinions and witness fees," but the amount "may not exceed $1, 500 unless the claimant demonstrates extraordinary circumstances justifying the payment of a greater amount." In this case, the board concluded that claimant had demonstrated extraordinary circumstances. Employer and SAIF seek review, assigning error to that conclusion on several grounds. Held: The board's order lacks substantial reason. The legislature intended "extraordinary circumstances" to mean something more than reasonable expenditures to prove a denied claim, and the board failed to explain why the circumstances in this case were extraordinary.

         Reversed and remanded.

         [297 Or.App. 285] AOYAGI, J.

         Under ORS 656.386(2)(d), if a workers' compensation claimant finally prevails against the denial of a claim as provided in ORS 656.386(1), the court, board, or administrative law judge (ALJ) may order the workers' compensation insurer to pay the claimant's "reasonable expenses and costs for records, expert opinions and witness fees." However, ordered payments "may not exceed $1, 500 unless the claimant demonstrates extraordinary circumstances justifying the payment of a greater amount." In this case, the board concluded that claimant had demonstrated extraordinary circumstances and ordered payment of expenses and costs in excess of $1, 500. Insurer and employer (collectively, "insurer") seek review. For the reasons that follow, we reverse and remand.

         I. FACTS

         We state the facts in accordance with the board's unchallenged findings of fact, which are the facts for purposes of judicial review. Multnomah County Sheriffs Office v. Edwards, 361 Or. 761, 776, 399 P.3d 969 (2017).

         Claimant, an auto parts worker, filed an occupational disease claim for bilateral carpal tunnel syndrome (CTS). He received treatment from Dr. Lowe, a general practitioner, and Dr. Taylor, a neurologist, both of whom opined that his condition was work-related. At insurer's request, Dr. Nolan, a plastic/hand surgeon, examined claimant. After Nolan opined that the condition was not work-related, insurer denied the claim.

         Claimant requested a hearing. At the hearing, claimant submitted concurrence reports from Lowe and Taylor, each of whom opined that claimant's condition was work-related. Claimant also submitted a report from Dr. Woolley, a hand and upper extremity surgeon who had recently examined claimant, who also opined that claimant's condition was work-related. After the hearing but before the record closed, Taylor became unsure whether the condition was work-related and effectively withdrew his earlier opinion.

         [297 Or.App. 286] The ALJ set aside the denial of the claim. The ALJ found Lowe's and Woolley's opinions more persuasive than Nolan's opinion, in part because Woolley had rebutted a key piece of Nolan's reasoning.

         As part of his order on compensability, the ALJ ordered insurer to pay claimant's "reasonable expenses and costs," pursuant to ORS 656.386(2), without specifying an amount. Claimant thereafter submitted a cost bill to insurer for $1, 550, which reflected his payments to Lowe ($150), Taylor ($200), and Woolley ($1, 200). Insurer promptly paid $1, 500. Claimant requested a hearing on the remaining $50.

         At the hearing on costs, claimant argued to the ALJ that extraordinary circumstances existed, under ORS 656.386(2)(d), so as to allow an order to pay costs in excess of $1, 500. In response, insurer did not contest that claimant's costs were reasonable, but it disputed that claimant had demonstrated extraordinary circumstances.

         Relying on a common definition of “extraordinary”- that is, “more than ordinary: not of the ordinary order or pattern <ordinary and [extraordinary] expenses>: going beyond what is usual, regular, common or customary, ” Webster's Third New International Dictionary 807 (unabridged ed 2002)-the ALJ concluded “that this record does not establish extraordinary circumstances justifying reimbursement of costs beyond the limit.” The ALJ explained his conclusion:

"Turning to the merits, I agree with [insurer's] contention that claimant has not demonstrated extraordinary circumstances justifying reimbursement of costs beyond the $1, 500 limit. The compensability of the occupational disease claim for bilateral CTS presented an issue of average complexity when compared to other issues decided in this forum, and there was only one carrier-arranged examination (by Dr. Nolan). Further, contrary to claimant's contention, the need to obtain an expert opinion from a specialist-in this case, hand and upper extremity surgeon Dr. Woolley-does not make this case extraordinary. Expert opinions from specialists (e.g., orthopedic surgeons, neurosurgeons) are fairly common in this forum. Because these circumstances are ordinary and common when compared to other cases in this forum, I conclude that claimant [297 Or.App. 287] is not entitled to reimbursement of costs beyond the $1, 500 limit in ORS 656.386(2)(d). Accordingly, his request for full reimbursement must be denied."

(Emphases added.)

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Claimant appealed to the board. The board adopted the ALJ&#39;s findings of fact but disagreed with his ultimate conclusion regarding extraordinary circumstances. Applying the same dictionary definition as the ALJ had, the board concluded that the circumstances of this case were not "usual, regular, common or customary in the forum, "[1]i.e., that they were extraordinary. Specifically, the board identified the following circumstances as relevant: (1) claimant lacked private health insurance at the time of his injury, had lost his job shortly after the injury, and needed surgery that, realistically, he would only be able to obtain if he prevailed on his workers' compensation claim; (2) insurer had procured the report of a "highly credentialed hand surgeon [Nolan] to support its denial"; (3) Lowe lacked the specialized knowledge of the other physicians, and Taylor's opinion ultimately did not support ...


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