In the Matter of the Compensation of Nancy E. Eggert, Claimant. Nancy E. EGGERT, Petitioner,
SAIF CORPORATION and The Adobe Motel, Inc., Respondents.
and submitted November 28, 2018
Workers' Compensation Board 1600198
Quinn argued the cause and fled the briefs for petitioner.
Masters argued the cause and fled the brief for respondents.
Powers, Presiding Judge, and Egan, Chief Judge, and Landau,
Senior Judge. [*]
seeks judicial review of an order of the Workers'
Compensation Board determining that SAIF, which had accepted
claimant's knee injury claim "contingent on the
outcome" of appeal, was not required to issue a modified
notice of acceptance of claimant's knee injury claim
after exhausting its challenges to the claim's
compensability. Claimant contends that SAIF was required to
issue a modified notice of acceptance removing the
contingency and that its failure to do so in response to
claimant's request for clarification of the notice of
acceptance constituted a de facto denial of the claim.
Held: A claim may be accepted contingently pending
appeal. When litigation is finally concluded, the acceptance
becomes final and the contingency falls away as a matter of
law. Thus, after SAIF had exhausted its challenges to
compensability, it did not need to issue an updated notice
accepting the claim without the contingency. SAIF's
failure to respond to claimant's request for
clarification of the notice of acceptance did not constitute
a de facto denial of the claim.
Or.App. 178] EGAN, C. J.
seeks judicial review of an order of the Workers'
Compensation Board determining that SAIF was not required to
issue a modified notice of acceptance of claimant's knee
injury claim after SAIF exhausted its challenges to the
compensability of the claim. Claimant's petition raises a
legal issue that we review for errors of law. ORS
183.482(8)(a). We conclude that the board did not err and
the facts, which are largely procedural and undisputed, from
the board's order. Claimant injured her knee at work and
filed a claim for a left medial meniscus tear, which SAIF
denied. An administrative law judge (ALJ) set aside
SAIF's denial, and SAIF appealed to the board.
appeal to the board, and in compliance with the ALJ's
order, SAIF issued an Initial Notice of Acceptance, which
listed "left medial meniscus tear" as a
"contingent accepted medical condition." The
Initial Notice of Acceptance also stated:
acceptance of these conditions * * * is contingent on the
outcome of the appeal." The board affirmed the ALJ's
order setting aside SAIF's denial.
then closed the claim with an award of permanent impairment
and, as required by OAR 436-030-0015, SAIF issued an Updated
Notice of Acceptance at Closure, which described the accepted
condition as "left medial meniscus
tear." The notice of closure also stated,
"SAIF's [301 Or.App. 179] acceptance of these
conditions has been challenged on appeal, and the acceptance
of these conditions is contingent on the outcome of the
appeal." The notice said that SAIF was not required to
pay disability compensation "unless and until the
condition is found to be compensable after all litigation is
final." See ORS 656.313(1) (payment of some
benefits stayed pending appeal).
thereafter, SAIF filed a petition for judicial review of the
board's order. On SAIF's motion, we subsequently
dismissed the petition, and SAIF paid the permanent
then asked SAIF to provide a "clarified Notice of
Acceptance" that did not include the statement that
SAIF's acceptance was contingent on the outcome of
litigation. At that time, the determination of
compensability [301 Or.App. 180] had become final, the claim
had been closed, and claimant's benefits for impairment
had been paid.
did not respond to claimant's request to clarify the
notice of acceptance, and claimant requested a hearing,
asserting a "de facto denial/challenge to
Notice of Acceptance/medical services." The parties
presented their positions to the ALJ in writing. The ALJ
concluded that SAIF was not required to amend its notice of
acceptance, and claimant appealed to the board.
our opinion in Crawford v. SAIF, 241 Or.App. 470,
480, 250 P.3d 965 (2011), the board determined that SAIF was
required to respond to claimant's request for
clarification by revising the notice of acceptance or by
making "other relevant clarification," but that it
was not required to issue a new notice of acceptance. In
Crawford, we addressed the requirements of ORS
656.262(6)(d) and ORS 656.267,  [301 Or.App. 181] as related to
omitted condition claims, and explained that the nature of a
claimant's request will dictate the response required
from the insurer. When a claimant expressly seeks to have an
omitted condition accepted, the insurer must respond by
processing an omitted condition claim pursuant to ORS
656.262(7)(a), by either accepting or denying the claim
within 60 days. Id. When, however, "the worker
seeks a mere clarification of a notice of acceptance,"
the insurer's obligation to respond within 60 days under
ORS 656.262 (6)(d) may be satisfied either by revising the
notice of closure or by making other relevant clarification,
including by a letter explaining what conditions are
board here determined that, because claimant's request
sought only a clarification of the notice of
acceptance and was not a request for acceptance of a new or
omitted condition, it did not trigger an obligation to issue
a new notice of acceptance or denial, but it did require a
response by one of the two methods described in
Crawford. The board concluded that, because SAIF
failed to so respond, ...