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In re Compensation of Simi

Court of Appeals of Oregon

December 26, 2019

In the Matter of the Compensation of Randy G. Simi, Claimant.
v.
LTI INC. - LYNDEN INC., Respondent. Randy G. SIMI, Petitioner,

          Argued and submitted October 16, 2019

          Workers' Compensation Board 1702216.

Ronald A. Fontana argued the cause and filed the briefs for petitioner.

          Rebecca A. Watkins argued the cause for respondent. Also on the brief was Sather, Byerly & Holloway, LLP.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Powers, Judge.

         Case Summary: Claimant seeks review of an order of the Workers' Compensation Board setting aside an order of an administrative law judge directing employer to reopen an accepted claim for "right rotator cuff tear" for the processing of claimant's current shoulder conditions of infraspinatus and supraspinatus tears, which claimant contended are new or omitted conditions under ORS 656.262(7). Claimant contends that, because employer conceded at the hearing that the conditions are compensable as encompassed within the original claim, employer is required under ORS 656.262(7)(c) to reopen the claim and reprocess the conditions. Held: ORS 656.262(7)(c) imposes an obligation to reopen a claim for processing only for conditions that are found to be compensable as new or omitted medical conditions (or aggravations or combined conditions) and therefore have not previously been processed, not for conditions that are only alleged to be new or omitted but that are determined to have been encompassed in an original acceptance and previously processed. The board therefore did not err in concluding that the original claim for right rotator cuff tear did not need to be reopened for processing of the infraspinatus and supraspinatus tears.

         Affirmed.

         [301 Or.App. 536] DEVORE, J.

         This case is one in a series of claims relating to claimant's efforts to obtain workers' compensation benefits for a shoulder condition diagnosed as "right shoulder full thickness tear of the supraspinatus tendon and tearing of the infraspinatus tendon." Claimant seeks review of an order of the Workers' Compensation Board setting aside an order of an administrative law judge (ALJ) that had directed employer to reopen an accepted claim for "right rotator cuff tear" for the processing of claimant's current shoulder conditions, which claimant asserts are new or omitted. Claimant also challenges the board's reversal of the ALJ's assessment of a penalty under ORS 656.262 (11)(a). We review the board's order for substantial evidence and errors of law. ORS 183.482(8)(a), (c). We conclude that the board did not err and affirm.

         The facts are undisputed, but the procedural history of the claims is a bit complex. Claimant filed a claim for a right shoulder injury in 2010. Employer accepted the claim as a right rotator cuff tear, claimant had surgical repairs, and the claim closed in 2011 with an award for permanent impairment.

         In 2013 and 2014, claimant suffered work-related injuries and, in 2015, he had a second surgery to repair a new rotator cuff tear. The orthopedic surgeon diagnosed "recurrent right full thickness rotator cuff tear." In 2016, claimant sought to establish the compensability of his current shoulder conditions-infraspinatus and supraspinatus tears-either as new/omitted conditions or as an aggravation of the 2010 injury.[1] Employer denied both claims as not compensable.[2] Subsequently, the doctor who had performed claimant's 2010 surgery opined that "'rotator cuff encompassed a reference to the supraspinatus and infraspinatus [301 Or.App. 537] tendons," that his diagnoses were meant to encompass those conditions, and that the previously accepted "right rotator cuff tear "adequately encompassed the new or omitted conditions."

         At a hearing, employer acknowledged that the described conditions were more specific terms for the rotator cuff tear that had been accepted in 2011. Employer did not, however, rescind or amend its denial.

         In an order of March 24, 2017, an ALJ upheld employer's denial of the aggravation claim, but set aside that portion of employer 's denial based on compensability, reasoning that the denied conditions were encompassed within the accepted rotator cuff tear claim.[3] They were compensable insofar as they had been previously accepted. The ALJ awarded an attorney fee under ORS 656.386(1). Despite claimant's request, however, the ALJ did not remand the claim to employer for acceptance and further processing, and employer did not reopen the claim for processing. Both parties appealed the ALJ's order to the board.

         While the appeals to the board were pending on the order of March 24, 2017, claimant initiated this separate proceeding, seeking an order requiring employer to reopen the 2010 claim for acceptance and processing of the infraspinatus and supraspinatus tears.

         Before a hearing occurred on claimant's hearing request, the board, in an order of October 2017, largely upheld the ALJ's March 2017 order, making rulings favorable to each party. The board upheld the ALJ's rejection of employer's compensability denial and also awarded claimant a penalty and attorney fees under ORS 656.262(11)(a) for unreasonable claims processing. However, on the evidence, the board agreed with employer that the claimed conditions were not new or omitted and were encompassed [301 Or.App. 538] within employer's acceptance of the claim for right rotator cuff tear. And, the board upheld employer's denial of claimant's aggravation claim for the claimed conditions.

         Despite having overturned employer 's denial of the compensability of the claimed conditions, the board's October 2017 order did not remand the claim for further processing. Employer had contended that setting aside the denial could "create the illusion that [the] employer must process the supraspinatus and infraspinatus tears," but the board did not explicitly address whether additional processing was required. Instead, the board simply observed that the ALJ's March 2017 order had not remanded the claim to employer for further processing.

         We affirmed the board's October 2017 order without opinion. 295 Or.App. 143, 432 P.3d 399 (2018). Thus, the board's October 2017 order finally determined that the infraspinatus and supraspinatus tears are encompassed within employer's acceptance of a right rotator cuff tear and did not constitute new or omitted conditions or an aggravation of the right rotator cuff tear (i.e., the 2010 injury was not a material contributing cause of any worsening of the right rotator cuff tear).

         Returning to the matter before us, as we have noted, after the ALJ's March 2017 order, claimant had requested a hearing seeking an order requiring employer to reopen the earlier claim for processing of the infraspinatus and supraspinatus tears. Claimant relied on ORS 656.262(7)(c), which provides that "[i]f a condition is found compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition." The ALJ agreed with claimant, determining that employer was required to reopen the claim, because employer's compensability denial had been overturned. The ALJ determined that the overturning of the compensability denial also triggered an obligation under OAR 436-060-0140(7) to issue a new notice of acceptance. The ALJ reasoned that the March 2017 and October 2017 orders had not addressed the processing obligations resulting from ...


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