54 Van Natta 269 (2002). EARL K. MCQUOWN, Claimant.
Case Date | May 07, 2002 |
Court | Oregon |
Oregon Worker Compensation
2002.
54 Van Natta 269 (2002).
EARL K. MCQUOWN, Claimant
269In the Matter of the Compensation of EARL K.
MCQUOWN, ClaimantOwn Motion No. 02-0056MOWN MOTION ORDER REVIEWING CARRIER CLOSUREClaimant UnrepresentedReviewing Panel: Members Biehl
and Lowell.Claimant requests review of the
insurer's February 13, 2002 Notice of Closure, which
closed his claim with an award of temporary disability compensation from May
11, 2001 through May 18, 2001.1 The insurer declared claimant medically
stationary as of May 18, 2001. In his request for
review, claimant contends that his closure was "wrong" because of his ongoing
treatment. We interpret claimant's contention to mean he was not medically
stationary at claim closure and is entitled to additional benefits. A claim may not be closed unless the claimant's condition is
medically stationary. See OAR 438-012-0055(1). "Medically
stationary" means that no further material improvement would reasonably be
expected from medical treatment or the passage of time. ORS 656.005(17).
Claimant bears the burden of proving that he was not medically stationary at
claim closure. Berliner v.Weyerhaeuser
Corp., 54 Or App 624 (1981). The propriety
of the closure turns on whether claimant was medically stationary at the time
of the February 13, 2002 Notice of Closure, considering claimant's condition at
the time of closure and not of subsequent developments. See
ORS 656.268(1); Sullivan v. Argonaut Ins. Co., 73 Or App 694
(1985); Alvarez v. GAB Business Services, 72 Or App 524
(1985). The issue of claimant's medically stationary status is primarily a
medical question to be decided based on competent medical evidence.
Harmon v. SAIF, 54 Or App 121, 125 (1981); Austin v.
SAIF, 48 Or App 7, 12 (1980). 1 Claimant's
December 26, 1989 claim was accepted as a disabling claim and was first closed
on December 19, 1991. Thus, claimant's aggravation
rights expired on December 19, 1996. ORS
656.273(4)(a). When claimant's condition worsened requiring surgery in April
2001, claimant's claim was under our Own Motion jurisdiction. Former
ORS 656.278(1)(a). Consistent with our statutory authority, on May 23,
2001, we issued our Own Motion Order authorizing the payment of temporary
disability compensation and noted that when claimant was medically stationary,
the insurer should close the...
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