55 Van Natta 4336 (2003). DEBRA L. HARGROVE, Claimant.

• Court: Oregon

Oregon Workers Compensation 2003. 55 Van Natta 4336 (2003). DEBRA L. HARGROVE, Claimant 4336In the Matter of the Compensation of DEBRA L. HARGROVE, ClaimantOwn Motion No. 03-0191MOWN MOTION ORDERErnest M Jenks, Claimant Attorneys Scheminske et al, Defense AttorneysReviewing Panel: Members Kasubhai and Lowell.The self-insured employer submitted a "Carrier's Own Motion Recommendation" form recommending against the reopening of claimant's 1981 injury claim for "post-aggravation rights" new or omitted medical conditions ("constipation; neuritis/neuralgia; paraplegia; depressive neurosis; paravascular dermatitis; isolated colonic ileus; renal (kidney) infection, inflammation, damage and failure; nausea and vomiting"). See ORS 656.278(1)(b) (2001). Claimant's aggravation rights on that claim have expired. The employer opposes reopening, contending that claimant's new medical conditions are not related to her previously accepted claim. On April 14, 2003, a hearing was convened in WCB Case No. 01-02440 before an Administrative Law Judge (ALJ). At the hearing, the parties acknowledged that the issues included "post-aggravation rights" new and/or omitted medical conditions, along with medical service and attorney fee issues. In light of such circumstances, it was agreed that all the issues would be tried together in one hearing with the medical service and attorney fee issues decided in an Opinion and Order and the new and/or omitted medical conditions addressed in an Own Motion Recommendation. See OAR 438-007-0027. The ALJ forwarded an Own Motion Recommendation to the Board on May 13, 2003. On May 16, 2003, claimant filed a Motion for Abatement and Reconsideration of Own Motion Recommendation asking for the award of an attorney fee. On May 19, 2003, the employer objected to that request, noting that there is no statutory authority for the Hearings Division to award an attorney fee in an Own Motion Recommendation. On May 20, 2003, the ALJ issued an Amended Own Motion Recommendation. The ALJ recommended that the Board: (1) reopen the 1981 claim for depressive neurosis and constipation conditions; (2) deny reopening for 55 Van Natta 4336 (2003) 4337 the neuritis/neuralgia, paraplegia, dermatitis, isolated colonic ileus, renal (kidney) infection, inflammation, damage and failure, and nausea and vomiting conditions; and (3) award claimant's counsel an assessed attorney fee of $3,500 for prevailing against the employer's denial of compensability of claimant's depressive neurosis and constipation conditions. FINDINGS OF FACT We adopt the ALJ's "Findings of Fact" and "Findings of Ultimate Fact," and provide the following summary. As a young child, claimant suffered from encephalitis, which resulted in brain damage. Claimant performs in the mildly retarded to borderline range. (Ex. 34-6). She has been diagnosed with schizophrenia and a schizoaffective disorder. (Exs. 67; 71; 89). Claimant compensably injured her low back in October 1981. (Ex. 1). She was initially diagnosed with a lumbar and cervical strain. (Ex. 2). Claimant underwent a laminectomy in 1982, a laminectomy discectomy in 1988, discectomy in 1989, fusion in 1990, and refusion in 1991. (Ex. 34-3). (In addition, after the 1982 surgery, a second operation was needed because of wound infection). None of the surgeries resulted in any significant lasting pain relief. Id.After the 1982 surgery, claimant was treated at the Good Samaritan Pain Clinic until early 1983. She made some progress in her physical function, but no lasting changes, and she remained very somatically focused. Her mood stabilized somewhat. Id. Also, since the surgery, claimant had become quite depressed, anxious, labile, and agitated with suspiciousness so pervasive that a psychiatric consultation was provided. Id. During this time, claimant was participating in vocational counseling and it was noted that her pain complaints increased when attempts were made to assess her vocational abilities. Id. Since the time of her first back surgery, claimant has complained of urinary urgency/frequency/incontinence and constipation. There have been multiple workups, hospitalizations for severe constipation, two bladder suspensions in 1986, and augmentation colocystoplasty and urinary sphincter placement in 1987. The bladder/bowel problems have continued and claimant has had a foley catheter and/or self catheterization since 1987. Id. 55 Van Natta 4336 (2003) 4338 On May 17, 1983, claimant was awarded 50 percent unscheduled permanent partial disability. (Ex. 3). On May 27, 1983, a second Determination Order increased her award to 60 percent. (Ex. 4). On August 20, 1985, that award was increased to permanent total disability status pursuant to a Stipulation and Order. (Ex. 6). Claimant has been confined to a wheelchair due to perceived low back pain and balance problems since her first surgery, which has resulted in chronic dermatitis of the buttocks. (Ex. 68). Claimant has also been treated for depression and schizoaffective disorder since at least 1994. (Exs. 9; 15). Her medications...