54 Van Natta 719 (2002). FELIX C. MIRANDA, Claimant.

Case Date:June 17, 2002
Court:Oregon
 
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Oregon Worker Compensation 2002. 54 Van Natta 719 (2002). FELIX C. MIRANDA, Claimant 719In the Matter of the Compensation of FELIX C. MIRANDA, ClaimantWCB Case No. 01-03292, 01-00370ORDER ON REVIEWRansom Et Al, Claimant AttorneysSteven T Maher, Defense Attorneys Sheridan Levine LLP, Defense AttorneysReviewing Panel: Members Lowell and Biehl.Paula Insurance Company (Paula), on behalf of Sam LeFore Fruit Farms, requests review of Administrative Law Judge (ALJ) Stephen Brown's order that: (1) set aside its responsibility denial of claimant's left wrist de Quervain's tenosynovitis; and (2) upheld Lamb-Weston, Inc.'s responsibility denial of the same condition. On review, the issue is responsibility. We affirm. FINDINGS OF FACT On May 29, 1998, claimant compensably injured his left wrist while working for Sam LeFore Fruit Farms (LeFore), Paula's insured. An x-ray showed a nondisplaced fracture of the left navicular bone. (Ex. 3). Dr. Dietrich began treating claimant in June 1998 and placed him in a cast. (Ex. 5). On September 3, 1998, claimant was placed in a splint. (Ex. 13). Dr. Dietrich said claimant had no tenderness and the x-rays showed that the fracture was healed. (Id.) He reported on September 14, 1998 that claimant was still tender in his "snuff box" over the navicular and he recommended physical therapy. (Ex. 13). Paula accepted a left wrist fracture. (Exs. 19, 31). On October 12, 1998, Dr. Dietrich said claimant was tender over the first dorsal compartment and had a mild to moderately positive Finkelstein's test. (Ex. 20). Dr. Dietrich released claimant to full duty on November 9, 1998. (Ex. 25). Claimant last worked for LeFore in November 1998. (Tr. 16). 54 Van Natta 719 (2002)720In his December 14, 1998 chart note, Dr. Dietrich indicated claimant was less tender and he could not elicit a positive Finkelstein's test. (Ex. 27). He did not recommend any further treatment. (Id.) Drs. Leadbetter and Jessen performed a closing examination in February 1999. They reported that claimant had a mildly positive Finkelstein's test and subjective tenderness over the left "snuff box." (Ex. 29-4). They concluded that claimant was medically stationary and the fracture site had healed. (Ex. 29-4, -5). Dr. Dietrich concurred with their report. (Ex. 30). A Notice of Closure awarded 3 percent scheduled permanent disability for loss of use or function of the left wrist. (Ex. 32). Dr. Marble performed a medical arbiter examination in July 1999, noting that claimant had continued wrist pain. (Ex. 33-2). An Order on Reconsideration affirmed the Notice of Closure. (Ex. 34). Claimant returned to Dr. Dietrich on March 22, 2000, complaining of pain in his wrist and in his thumb. (Ex. 38). Dr. Dietrich noted that claimant said "it really has continued bothering him ever since he hurt it and really has not gotten any better." (Id.) He found that claimant's thumb was tender over the first dorsal compartment and he had a questionably positive Finkelstein's test. (Id.) Dr. Dietrich diagnosed "[c]hronic persistent pain in his right thumb and wrist following his injury to his wrist with a possible chronic de Quervain's syndrome." (Id.) He recommended reopening the claim. (Exs. 38, 39). Dr. Dietrich later clarified that his findings pertained to claimant's left wrist. (Exs. 41, 46). Claimant began working for Lamb-Weston on July 14, 2000. (Exs. 50-4, 51). On October 2, 2000, Dr. Marble examined claimant on behalf of Paula. (Ex. 47). Dr. Nolan examined claimant on behalf of Lamb-Weston in April 2001. (Ex. 57). Dr. Thompson performed a review of records in July 2001 on behalf of Lamb-Weston. (Ex. 60). In December 2000, claimant's attorney asked Paula to amend the acceptance to include left wrist de Quervain's syndrome. (Ex. 49). In January 2001, claimant signed an "801" form with Lamb-Weston regarding his left wrist condition. (Ex. 51). 54 Van Natta 719 (2002)721Paula and Lamb-Weston denied responsibility for claimant's left wrist condition. (Exs. 53, 58). CONCLUSIONS OF LAW AND OPINION The ALJ reasoned that, because claimant's de Quervain's tenosynovitis did not require medical services or result in disability while he was employed by Lamb-Weston, there was no successive injury or disease with Lamb-Weston and, therefore, Paula could not rely on the last injurious exposure rule (LIER) to shift responsibility to Lamb-Weston. In addition, the ALJ found that Paula could not attempt to shift responsibility to a nonjoined employer because it did not comply with ORS 656.308(2)(a). Alternatively, the ALJ found that, if the LIER applies, claimant's first treatment was while employed by a nonjoined employer and that employer was initially responsible. The ALJ relied on Dr. Marble's October 2, 2000 report to assign responsibility to Paula because claimant's employment with Paula's insured was the "sole cause" of the de Quervain's tenosynovitis. Paula argues, among other things, that it complied with ORS 656.308 in issuing its denial and, in any event, the ALJ erred by finding that Paula could not attempt to shift responsibility based on any such statutory violation. Paula issued a responsibility denial on March 8, 2001, which provided, in part: "We feel another employer or insurer may be responsible for your claim. We are therefore denying responsibility for you claim. This is a denial of responsibility only. We suggest that you file claims with all potentially responsible employers or insurers for your condition." (Ex. 53). Under ORS 656.308(2)(a), a carrier's denial "shall advise the worker to file separate, timely claims against other potentially responsible insurers or self-insured employers, including other insurers for the same employer, in order to protect the right to obtain benefits on the claim."1 The statute provides that the denial "may" list the names and addresses of other insurers or self-insured employers. 1 We note that ORS 656.308(2)(a) has been amended to change "90 days" to "60 days." Or Laws, chapter 865, section 8. The 2001 amendments to ORS 656.308, however, apply to claims with a date of injury on or after January 1, 2002. Or Laws, chapter 865, section 22(1). Because claimant's date of injury was before January 1, 2002, we apply the former version of ORS 656.308(2)(a). 54 Van Natta 719 (2002)722Paula's denial advised claimant to "file claims with all potentially responsible employers or insurers[.]" (Ex. 53). Although Paula did not specifically instruct claimant to file claims with other carriers "in order to protect the right to obtain benefits on the claim," we find no evidence that the legislature intended any such failure to preclude a carrier from asserting a responsibility defense. Compare Norstadt v. Murphy Plywood, 148 Or App 484, 494-95 (failure to follow the requirements of the 1990 version of former ORS 656.308(2) precluded...

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