54 Van Natta 74 (2002). RODNEY G. MCALENY, Claimant.

• Case Date: January 29, 2002
• Court: Oregon

Oregon Worker Compensation 2002. 54 Van Natta 74 (2002). RODNEY G. MCALENY, Claimant 74In the Matter of the Compensation of RODNEY G. MCALENY, ClaimantWCB Case No. 95-09821ORDER ON REMANDBrad L Larson, Claimant AttorneysJudy C Lucas, SAIF Legal, Defense AttorneysReviewing Panel: Members Haynes, Bock, and Biehl. Member Biehl dissents. This matter is before the Board on remand from the Supreme Court. McAleny v. Max J. Kuney Co., 331 Or 178 (2000). The Court has vacated the Court of Appeals' decision, 149 Or App 212 (1997), that affirmed our prior order, Rodney J. McAleny, 48 Van Natta 2142 (1996 ), that found that claimant's right knee lateral meniscus tear injury (incurred during a medical arbiter examination) was not compensable. Citing Robinson v. Nabisco, 331 Or 178 (2000), the Court has remanded for further proceedings. We begin by briefly recounting the factual background and procedural history of the claim. Claimant compensably injured his right knee in December 1994, which resulted in a partial lateral and medial meniscectomy. The claim was closed by a May 10, 1995 Notice of Closure with an award of 18 percent scheduled permanent disability. Seeking to increase his scheduled permanent disability award, claimant requested reconsideration and a medical arbiter examination. During the medical arbiter examination, the medical arbiter hyperextended claimant's right leg, causing a lateral meniscus tear. The ALJ found that claimant's meniscus tear was a consequential condition and a direct result of an activity that would not have occurred but for his compensable injury. The ALJ concluded, however, that claimant's compensable injury was not the major contributing cause of the consequential condition because the medical arbiter's examination was an intervening event independent of the original compensable injury. In so concluding, the ALJ relied on our decision in Kathleen A. Robinson, 46 Van Natta 833, on recon 46 Van Natta 1677 (1994). Claimant requested Board review. We agreed with the ALJ that the persuasive medical evidence established that the major contributing cause of claimant's consequential condition was the injury sustained during the medical arbiter's examination, and not the original 54 Van Natta 74 (2002)75compensable injury. Rodney J. McAleny, 48 Van Natta 2142. Therefore, we held that claimant's worsened condition was not compensable. Claimant also contended on review that ORS 656.018 and amendedORS 656.268 violated Article I, section 10, of the Oregon Constitution. In particular, claimant argued that he was injured during the course of a required medical arbiter examination and that, because the medical arbiter is exempt from liability under ORS 656.018, he was prohibited from bringing civil actions for his injury. Given that the ALJ found his aggravation claim not compensable, claimant, therefore, concluded that he was left without a remedy. We rejected claimant's argument. We noted that, at the outset of the hearing, claimant stated that the issues were extent of disability and, in the alternative, aggravation. Claimant did not raise the constitutional issue until closing arguments. We observed that we will not consider a new issue first raised during closing arguments, citing Leslie Thomas, 44 Van Natta 200 (1992) and Edward A.Rankin, 41 Van Natta 1926, on recon 41 Van Natta 2135 (1989). Alternatively, even if claimant had properly raised his constitutional challenge, we stated that we would not consider the issue because claimant had not demonstrated that he had been injured by operation of ORS 656.018 and amend...