55 Van Natta 4228 (2003). MARIA C. VALENZUELA, Claimant.

• Court: Oregon

Oregon Workers Compensation 2003. 55 Van Natta 4228 (2003). MARIA C. VALENZUELA, Claimant 4228In the Matter of the Compensation of MARIA C. VALENZUELA, ClaimantWCB Case No. 02-08125ORDER ON REVIEWRandy Rice AAL, Claimant Attorneys James B Northrop, SAIF Legal, Defense AttorneysReviewing Panel: Members Kasubhai and Langer.The SAIF Corporation requests review of those portions of Administrative Law Judge (ALJ) Tenenbaum's order that: (1) set aside its denial to the extent that it denied an injury to claimant's contact lens; (2) awarded a $3,000 assessed fee pursuant to ORS 656.386(1); (3) awarded a $500 assessed fee for an allegedly unreasonable denial; and (4) awarded a $300 assessed fee a discovery violation. Claimant cross-requests review of that portion of the ALJ's order that upheld SAIF's denial to the extent that it denied compensability of medical services for an alleged eye injury. In her briefs, claimant contends that the ALJ's attorney fee awards should be increased. On review, the issues are compensability and attorney fees. We affirm in part and reverse in part. FINDINGS OF FACT We adopt the ALJ's "Findings of Fact" and "Ultimate Findings of Fact." CONCLUSIONS OF LAW AND OPINION Compensability of "injury" to a prosthetic device (contact lens) Claimant is a sanitation worker for the employer. On September 24, 2002, during the course and scope of her employment, she lifted a bag which slipped, causing her hand to jerk up and poke herself just under the left eye, dislodging her left contact lens and causing a bleeding scratch just below her left eyeball. She received first aid for the scratch, but was unable to find the contact lens. (Ex. 1; Tr. 27-29). On October 7, 2002, claimant sought "evaluation and treatment" from Dr. Reichle, an occupational medicine physician, for a suspected "foreign body," "arc shaped images," and "flashes" in the left eye. (Ex. 2-1; Tr. 30). Dr. Reichle examined claimant's eyes (noting the missing left contact lens) and diagnosed "[p]terygium bilaterally and hypertension." (Ex. 2-2). He referred claimant to 55 Van Natta 4228 (2003) 4229an opthalmologist for replacement of her lost contact lens and consideration of her pterygium and possible floaters. (Ex. 2-2). On the 827 form, Dr. Reichle noted that it was "not work related." (Ex. 3). On October 17, 2002, SAIF denied the claim, stating: "You filed a claim for an injury to your left eye which occurred on or about September 24, 2002, with [the employer]. We are unable to accept your claim for the following reasons: "Your pterygium is not compensably related to your employment." (Ex. 7). Claimant appealed the denial. At hearing, the parties agreed that the denial encompassed a denial of compensability of injury to the contact lens. The ALJ determined that claimant's loss of her contact lens constituted an "injury to" a prosthetic appliance under ORS 656.005(7)(a). The ALJ further concluded that claimant "required and requires" medical services associated with replacement of her contact lens. Consequently, the ALJ found that claimant had sustained a compensable injury and set aside that portion of SAIF's denial that denied an injury to claimant's contact lens.1 On review, SAIF argues that loss of a contact lens is not an "injury" to a prosthetic appliance under ORS 656.005(7)(a)2 and that replacement of a contact lens is not a "medical service" under that statute. Specifically, SAIF contends that there is no evidence that claimant's contact lens was "damaged" or "harmed" during the work incident, and that, therefore, the requirements for an "injury" under ORS 656.005(7)(a) were not satisfied. Relying on SAIF v. Smith, 177 Or App 504, 509 (2001), K-Mart v. Evenson, 167 Or App 46, 50, rev den 331 Or 191 1 The ALJ found SAIF's denial "moot" with respect to the pterygium condition, determining that no claim had been made for that condition. (O and O p.7). The ALJ upheld that portion of the denial that denied diagnostic services related to the pterygium condition. (O and O p.7). The parties do not contest the ALJ's finding that SAIF's denial of the pterygium condition is "moot." However, claimant contests that portion of the ALJ's order that found the medical treatment, including diagnostic medical services, to be noncompensable. 2 This statute provides in part: "(7)(a) A "compensable injury" is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death ***" 55 Van Natta 4228...