56 Van Natta 931 (2004). SHERLEE M. SAMEL, Claimant.
Case Date | March 16, 2004 |
Court | Oregon |
Oregon Workers Compensation
2004.
56 Van Natta 931 (2004).
SHERLEE M. SAMEL, Claimant
931In the Matter of the Compensation of SHERLEE
M. SAMEL, ClaimantOwn Motion No. 03-0199MOWN MOTION ORDER REVIEWING CARRIER CLOSUREGary Borden, Claimant Attorneys
Johnson Nyburg and Andersen, Defense AttorneysReviewing Panel: En
banc.Claimant requests review of
the insurer's April 29, 2003 "Notice of Closure: Own
Motion Claim" that: (1) awarded no temporary disability; and (2) awarded 24
percent (76.8 degrees) unscheduled permanent disability for her
"post-aggravation rights" new/omitted medical conditions (sacroiliac and low
back sprain/strains, major depressive disorder, recurrent, without psychotic
features). Claimant asserts that she is entitled to: (1) temporary total
disability (TTD) benefits up to "at least September 2002," based on her
contention that her accepted psychiatric condition was not medically stationary
until that time; and (2) permanent total disability (PTD) benefits based on her
accepted psychiatric condition or, in the alternative, increased unscheduled
permanent partial disability (PPD) benefits for that condition. The Notice of
Closure is affirmed in part and modified in part. FINDINGS OF FACT On August 6, 1991, claimant
compensably injured her right ankle, which ultimately resulted in a
below-the-knee amputation. The insurer eventually accepted a right ankle sprain
and a right "below-the-knee" amputation. (Exs. B, D.
1b). Claimant's aggravation rights expired on August 6, 1996. In August 1997, claimant began treating with Dr. Raese,
psychiatrist, for depression related to her right leg injury. On October 9,
1997, Dr. Raese released claimant from work for three months due to her
psychiatric condition. (Ex. 1). An August 28, 2001
Notice of Closure awarded: (1) TTD benefits, less time worked, for the period
June 9, 1994 through September 15, 2000; and (2) 93 percent (139.5 degrees)
scheduled permanent disability for loss of use or function of the right leg
(knee). (Ex. 1d). Claimant requested reconsideration of this closure. 56 Van Natta 931 (2004)932
Claimant also requested that the insurer accept
sacroiliac and low back sprain/strains and depression and anxiety as
consequential conditions resulting from the compensable right leg condition. On
December 3, 2001, the insurer accepted the claimed sacroiliac and low back
sprain/strains. (Ex. 6a). That same date, the insurer denied claimant's claim
for depression and anxiety. (Ex. 6b). A January 18,
2002 Order on Reconsideration: (1) extended temporary disability benefits
through July 16, 2001; and (2) reduced the scheduled permanent disability award
for loss of use or function of the right leg to 92 percent (138 degrees).1 (Ex.
8a-4-5). This represents claimant's permanent disability award to date for the
right leg injury.2 On October 26, 2001, Dr.
Ellison, orthopedist, examined claimant on behalf of the insurer, found
claimant's low back conditions medically stationary, and measured impairment
for those conditions. (Ex. 4, 7). Dr. Alexander, claimant's attending physician
for her medical conditions, concurred with Dr. Ellison's report. (Ex. 8).
On January 29, 2003, the insurer accepted "major
depressive disorder, recurrent, without psychotic features." (Ex. 15). On February 4, 2003, pursuant to our Own Motion authority
under ORS 656.278(1)(b) (2001), the claim was
reopened for the insurer to provide benefits for the following accepted
"post-aggravation rights" new/omitted medical conditions: (1) sacroiliac and
low back sprain/strain; and (2) major depressive disorder, recurrent, without
psychotic features. On January 21, 2003, Dr. Raese
noted that claimant "has been declared permanent and stationary since September
2000 for her psychiatric conditions." (Ex. 14). On January 28, 2003, claimant
treated with Dr. Noel, a psychologist with Dr.
Raese's clinic, who reported that claimant was very upset with Dr. Raese's
letter declaring her medically stationary. (Ex. 13a-4). On January 30, 2003,
Dr. Raese stated that claimant was medically
stationary for her psychiatric condition in September 2002, not September 2000,
noting that the earlier date was 1 Because the low
back conditions were accepted after claim closure, the Order on Reconsideration did not rate those conditions. (Ex. 8a-1).
2 Although claimant initially requested a hearing to
appeal the January 18, 2002 Order on Reconsideration, she subsequently withdrew that hearing request. 56 Van Natta 931 (2004)933due to a "clerical error." (Ex. 16). Dr.
Raese stated that claimant was permanently and totally disabled due to her
psychiatric condition and would require continuous psychiatric care, including
medication management and supportive psychiatric therapy. (Exs. 16, 23).
Dr. Turco, psychiatrist, examined claimant on
behalf of the insurer and opined that claimant was psychiatrically medically
stationary as of July 16, 2001, and had remained so. (Ex. 21). An April 29, 2003 Own Motion Notice of Closure: (1) did not
award TTD; and (2) awarded 24 percent unscheduled
permanent disability for the "post- aggravation rights" new medical conditions
(low back and psychiatric conditions). (Ex. 26). The closure notice declared
claimant medically stationary as of October 26,
2001. Claimant requested Board review of the
insurer's closure, asserting entitlement to: (1) increased permanent disability
(including PTD and PPD); and (2) TTD "up to at least September 2002." On July 3, 2003, we issued an "Order Postponing Action on
Own Motion Request for Review of Carrier Closure,"
referring the claim to the Director to appoint a medical arbiter. On September 10, 2003, Dr. Klein, psychiatrist, examined
claimant in her capacity as a medical arbiter. CONCLUSIONS OF LAW AND OPINION Because the
aggravation rights on claimant's August 6, 1991 injury claim have expired, the
claim is within our Own Motion jurisdiction. Miltenberger v. Howard's Plumbing, 93 Or App 475 (1988). Having received the
parties' responses to Dr. Klein's medical arbiter report, we proceed with our
review. TTD Claimant
contends that she is entitled to TTD up to "at least September 2002," based on her contention that her accepted psychiatric
condition was not medically stationary until that time. We disagree. 56 Van Natta 931 (2004)934
ORS 656.278(1)(b) (2001) provides the requirements
for payment of TTD on an open "post-aggravation
rights" new medical condition claim and states that: "[i]n such cases, the
payment of temporary disability compensation in accordance with the provisions
of ORS 656.210, 656.212(2) and 656.262(4) may be provided from the time the
attending physician authorizes temporary disability compensation for the
hospitalization, surgery or other curative treatment until the worker's
condition becomes medically stationary[.]" ORS 656.262(4)(g) provides that
temporary disability compensation is not due after the worker's attending
physician ceases to authorize temporary disability or for any period of time
not authorized by the attending physician. Randy L. Goddard,
55 Van Natta 874 (2003); James J. Kemp, 54 Van Natta 491, 504
(2002). Here, on October 9, 1997, Dr. Raese,
claimant's attending physician for her compensable psychiatric condition,
released claimant from work for three months due to her psychiatric condition.
(Ex. 1). There is no other time loss authorization.3 Therefore, even assuming that her compensable psychiatric condition did
not become medically stationary until September 2002, claimant is not entitled
to any additional TTD on this record. PTD -
Applicability In Jimmy O. Dougan,
54 Van Natta 1213, on recon 54 Van Natta 1552 (2002), we
determined the availability of PPD benefits for claims in Own Motion status and
held that such benefits are only available for "post-aggravation rights" new or
omitted medical condition claims. ORS 656.278(1)(b) (2001). The question now
presented is whether PTD is also available for "post-aggravation rights" new or
omitted medical condition claims. In answering this
question, we apply the methodology established in PGE v. Bureau of Labor and Industries, 317 Or 606 (1993). Under that
methodology, we first examine the text and context of a statute because a
statute's wording "is the best evidence of the legislature's intent."
Id. at...
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