Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Compensation of Marsh

Court of Appeals of Oregon

May 15, 2019

In the Matter of the Compensation of Robert J. Marsh, Claimant.
v.
SAIF CORPORATION and Albina Pipe Bending Company - Albina Co., Respondents. Robert J. MARSH, Petitioner,

          Argued and Submitted July 3, 2018

          Workers' Compensation Board 1502112

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          David L. Runner argued the cause and fled the briefs for respondents.

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

         Case Summary:

         Claimant seeks review of an order of the Workers' Compensation Board upholding SAIF's award of temporary disability benefits for an accepted claim for low back strain and SAIF's denial of a claim for "L4-5 annular injury" as a new/omitted medical condition, based on claimant's failure to establish the existence of the condition.

         Held:

         The board did not err in upholding SAIF's denial of the new/omitted medical condition claim because, to prevail on a new/omitted medical condition claim, a claimant is required to establish the existence of a condition. However, board did err in its determination that claimant had relinquished his request for hearing on "procedural disability," and in upholding SAIF's calculation of claimant's average weekly wage for purposes of determining claimant's benefits for temporary disability under OAR 436-060-0025(5).

          [297 Or.App.487] HADLOCK, P. J.

         Claimant seeks review of an order of the Workers' Compensation Board upholding SAIF's award of temporary disability benefits for an accepted claim for low back strain and SAIF's denial of a new/omitted medical condition claim for a low back condition described as "L4-5 annular injury." We review the board's order for errors of law and substantial evidence. ORS 656.298; ORS 183.482(7) - (8). We conclude that the board erred with respect to the calculation of benefits for temporary disability and therefore reverse and remand that portion of the order; we otherwise affirm.

         The board's order adopted the findings of the administrative law judge (ALJ) with supplementation. We therefore draw our summary of the facts from the findings in both orders, which are largely undisputed. Claimant, a journeyman welder, injured his back at work on March 23, 2015, while handling a heavy piece of steel. A chiropractor diagnosed a "disc injury" and authorized claimant to be off work from March 25, 2015 through April 2, 2015. A few days later, claimant saw an urgent care physician, who ordered an MRI. Although the MRI showed bulges at several disc levels as well as two areas of disc protrusion, the physician reported "largely degenerative findings" and "nothing that appeared to be surgical or emergent." He recommended physical therapy and released claimant to modified work.

         On April 1, 2015, SAIF accepted a claim for lumbar strain and, on April 6, began paying benefits for time loss from March 28, 2015. SAIF calculated claimant's average weekly wage as $986.80, based on a five-day work week from Monday through Friday. But SAIF subsequently recalculated claimant's benefits based on its review of employer's payroll records and, on April 20, 2015, notified claimant that his average weekly wage was only $863.46. Claimant requested a hearing, contesting the "procedural disability rate" and also seeking "procedural temporary disability" benefits from March 23, 2015 to May 12, 2015, penalties, and attorney fees.[1]

         [297 Or.App.488] In the meantime, claimant had continued to experience low back pain and, in early April, he saw Dr. Brett, a neurosurgeon, who diagnosed "severe and worsening [discogenic] low back pain with left greater than right lower extremity radicular pain from L3-4, L4-5, and/or L5-S1 lumbar disc injuries superimposed on lumbosacral strain sustained in a work injury." Brett continued claimant's time loss authorization. A few weeks later, claimant saw another doctor at the same ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.