55 Van Natta 4145 (2003). CHARLES A. KING, Claimant.

• Court: Oregon

Oregon Workers Compensation 2003. 55 Van Natta 4145 (2003). CHARLES A. KING, Claimant 4145In the Matter of the Compensation of CHARLES A. KING, ClaimantWCB Case No. 02-07803, 02-07802ORDER ON REVIEWMartin J McKeown, Claimant Attorneys Alice M Bartelt, SAIF Legal, Defense AttorneysReviewing Panel: Members Biehl, Langer and Bock. Member Langer dissents. The SAIF Corporation requests review of those portions of Administrative Law Judge (ALJ) Myzak's order that: (1) found SAIF conceded compensability of claimant's low back condition until January 11, 2001; and (2) set aside its denial of claimant's injury claim for an L5-S1 disc condition for a date of injury of October 27, 2000. On review, the issues are scope of the issues and compensability. We affirm. FINDINGS OF FACT We adopt the ALJ's findings of fact. CONCLUSIONS OF LAW AND OPINION Scope of the Issues The ALJ found that SAIF had framed the issue "as if the L5-S1 disc condition is compensable as a combined condition to January 11, 2001." The ALJ concluded that the claim was compensable as a matter of law. The ALJ reasoned that, based on its closing argument, SAIF acknowledged compensability of the condition to January 11, 2001 "by its own implication[.]" Thus, the ALJ concluded that SAIF conceded compensability. Claimant agrees with the ALJ's reasoning and conclusion. SAIF argues that the ALJ erred in finding that SAIF conceded compensability of a combined condition until January 11, 2001. SAIF asserts that the ALJ misread its statement of the issues in its closing argument. Claimant compensably injured his low back on October 14, 2000 and SAIF accepted a nondisabling lumbar strain. (Ex. 38). On October 27, 2000, claimant 55 Van Natta 4145 (2003)4146 was involved in a work-related motor vehicle accident (MVA), and experienced neck and low back pain. SAIF accepted a disabling cervical strain. (Ex. 34). On September 13, 2002, claimant requested that SAIF amend the acceptances for the October 14 and 27, 2000 injuries to include an L5-S1 disc herniation. (Ex. 65). SAIF issued two denials on October 10, 2002 for each injury claim. (Exs. 66, 67). SAIF referred to an "L5-S1 disc condition" and denied compensability on the basis that the condition preexisted each injury. (Id.) At hearing, although claimant's attorney initially said that the issue was compensability of an "L5-S1 disc herniation," the parties agreed that the issue should be framed as an "L5-S1 disc condition." (Tr. 2-3). No testimony was presented and the parties agreed to submit their arguments in writing. (Tr. 3). Claimant's opening and reply closing arguments said that the issue was compensability of the L5-S1 disc condition. SAIF's closing argument said the question was: "Are either of the accepted injury claims the major contributing cause of claimant's disability or need for treatment after the January 11, 2001, Independent Medical Examination of Dr. Stephen Fuller, Orthopedic Surgeon?" (SAIF's closing argument at 1). An ALJ's scope of review is limited to the issues raised by the parties. E.g., Constance Bruneau, 54 Van Natta 1533 (2002). Waiver is "the intentional relinquishment of a known right." Wright Schuchart Harbor v. Johnson, 133 Or App 680, 685 (1995) (quoting Drews v. EBI Companies, 310 Or 134, 150 (1990)). Waiver must be plainly and unequivocally manifested, either "in terms or by such conduct as clearly indicates an intention to renounce a known privilege or power." Id. at 685-86 (quoting Great American Ins. v. General Ins., 257 Or 62, 72 (1970)). A waiver may be explicit or implied from a party's conduct. Wright, 133 Or App at 686. Here, we are not persuaded that SAIF conceded compensability of claimant's L5-S1 disc condition to January 11, 2001. We acknowledge that SAIF's framing of the issue in its closing argument is not entirely clear. SAIF referred to the issue as whether either of the accepted injury claims were the major contributing cause of claimant's disability or need for treatment after the January 11, 2001 exam by Dr. Fuller. When SAIF's closing argument is read as a 55 Van Natta 4145 (2003) 4147 whole, however, we are not persuaded that SAIF intended to relinquish its right to dispute compensability of claimant's L5-S1 disc condition. At hearing, the parties agreed that claimant was contesting SAIF's two denials of his L5-S1 disc condition. (Tr. 2-3). SAIF's closing argument referred to the fact that it had issued two denials of the claim on the basis that the L5-S1 disc condition preexisted claimant's injury. Among other things, SAIF's closing argument discussed Dr. Fuller's opinion. Dr. Fuller found that...