55 Van Natta 4185 (2003). MURIEL E. DEXTER, Claimant.

• Court: Oregon

Oregon Workers Compensation 2003. 55 Van Natta 4185 (2003). MURIEL E. DEXTER, Claimant 4185In the Matter of the Compensation of MURIEL E. DEXTER, ClaimantOwn Motion No. 02-0329MOWN MOTION ORDER REVIEWING CARRIER CLOSUREErnest M Jenks, Claimant Attorneys Johnson Nyburg and Andersen, Defense AttorneysReviewing Panel: Members Biehl and Lowell. Member Biehl concurs.Claimant requests review of the insurer's December 17, 2002 "Notice of Closure: Own Motion Claim" (Notice of Closure), which closed her claim with an award of temporary disability compensation from December 30, 1999 through March 4, 2002. The insurer declared claimant medically stationary as of March 4, 2002. Claimant contends that the medically stationary date assigned is inaccurate and that her claim was prematurely closed. In the alternative, she asserts that she is entitled to an additional temporary disability award for the period from March 5 to December 17, 2002, and to an award of permanent partial disability based on her "post-aggravation rights" new or omitted medical condition ("L4-5 stenosis; L3-4 spondylolisthesis; L3-4, L4-5, and L5-S1 disc bulge/herniation; L3-4 and L4-5 nerve root compression; L3 to sacrum fusion; and surgical infection").1 We affirm the Notice of Closure. FINDINGS OF FACT On February 16, 1979, claimant sustained a compensable injury. The insurer accepted a low back injury. The claim was closed by Determination Order in March 1980 with an award of 20 percent unscheduled permanent partial disability (PPD). Claimant was then 36 years old and performed work in a "light" capacity prior to her injury. The insurer rated her Specific Vocational Preparation (SVP) at 4. At various times during the period from March 1980 to February 1985, claimant's condition worsened resulting in additional awards of unscheduled PPD 1 Claimant's February 16, 1979 claim was accepted as a disabling claim and was first closed on March 17, 1980. Thus, claimant's aggravation rights expired on March 17, 1985. Therefore, when claimant sought claim reopening on October 2002, the claim was within our Own Motion jurisdiction. ORS 656.278(1) (2001). Consistent with our statutory authority, on November 7, 2002, we issued our Own Motion Order authorizing the reopening of the claim and noted that when claimant was medically stationary, the insurer should close the claim pursuant to OAR 438-012-0055. (WCB Case No. 02-0087M). On December 17, 2002, the insurer issued its Notice of Closure. 55 Van Natta 4185 (2003)4186 disability that brought her total award to 82.5 percent. Claimant's aggravation rights expired in March 1985. Claimant's low back condition repeatedly worsened between 1985 and 1998. Her claim was successively reopened and closed pursuant to our Own Motion authority. On February 10, 2000, the claim was reopened based on a further worsening of claimant's condition that required surgical treatment. On March 4, 2002, an insurer-arranged medical examiner (Dr. Smith) declared claimant's condition medically stationary. Thereafter, on March 25, 2002, the insurer closed the claim, awarding temporary disability benefits from March 30, 1999 through March 4, 2002. Claimant requested Board review of the closure, and requested that the insurer accept multiple "post-aggravation rights" new and/or omitted medical conditions. Thereafter, claimant requested a hearing regarding the insurer's alleged de facto denial of the requested new medical conditions. In an October 25, 2002 Stipulation and Order, the insurer rescinded its March 25, 2002 Notice of Closure and agreed to accept the following omitted medical conditions: (1) L4-5 stenosis; (2) L3-4 spondylolisthesis; (3) L3-4, L4-5, and L5-S1 disc bulge/herniation; (4) L3-4 and L4-5 nerve root compression; (6) L3 to sacrum fusion; and (7) surgical site infection.2 In October 2002, we issued an Own Motion Order of Dismissal, dismissing claimant's request for Board review of the March 25, 2002 Notice of Closure. On November 7, 2002, the insurer voluntarily reopened the claim pursuant to ORS 656.278(5) (2001) to provide benefits for the above-listed "post- aggravation rights" new/omitted medical conditions. On December 3, 2002, claimant was evaluated by Dr. Dinneen, an insurer- arranged medical examiner. Dr. Dinneen reported reduced lumbar ranges of motion, but did not comment on the validity of those findings. Dr. Dinneen considered claimant's condition medically stationary and opined that claimant's "post-aggravation rights" new medical conditions were "inherent in all of the prior diagnoses" and "would not of themselves add anything to [claimant's] impairment status." Dr. Dinneen stated that claimant's condition was "objectively medically stationary" and that her impairment remained the same as noted in Dr. Smith's March 4, 2002 report. 2 As a part of the Stipulation and Order, claimant agreed to withdraw her request for hearing and her requested review of the insurer's claim closure. 55 Van Natta 4185 (2003)4187 On December 17, 2002, the insurer closed the Own Motion claims for "worsening" and "post-aggravation rights" new medical condition by issuing a single Own Motion Notice of Closure that: (1) declared claimant medically stationary as of March 4, 2002; (2) awarded temporary disability benefits from December 30, 1999 through March 4, 2002; and (3) awarded no permanent disability benefits for the "post-aggravation rights" new/omitted medical conditions. Claimant requested review of the insurer's closure and a medical arbiter examination. On June 4, 2003, we issued an Interim Own Motion Order authorizing appointment of a medical arbiter and postponing the remainder of our review of the Own Motion claim closure pending receipt of the arbiter's report. A medical arbiter's report...