57 Van Natta 1128 (2005). ARTHUR D. KISER, Claimant.

• Case Date: April 28, 2005
• Court: Oregon

Oregon Workers Compensation 2005. 57 Van Natta 1128 (2005). ARTHUR D. KISER, Claimant 1128In the Matter of the Compensation of ARTHUR D. KISER, ClaimantOwn Motion No. 05-0092MOWN MOTION ORDERBlack Chapman et al, Claimant Attorneys Julie Masters, SAIF Legal, Defense AttorneysReviewing Panel: Members Lowell and Biehl.The SAIF Corporation has voluntarily reopened claimant's 1974 claim for a "post-aggravation rights" new medical condition ("L3-4 spinal stenosis") pursuant to ORS 656.278(1)(b) (2001). Claimant's aggravation rights under his 1974 claim have expired. Claimant argues entitlement to temporary total disability (TTD) compensation, commencing June 16, 2003. He also seeks assessment of a penalty, based on SAIF's allegedly unreasonable failure to pay those benefits. SAIF contends that claimant is not entitled to temporary disability benefits under the reopened claim, asserting that he was not in the work force at the time of his disability. SAIF also contends that its nonpayment of TTD was reasonable. We award temporary disability benefits, but decline to assess a penalty. FINDINGS OF FACT Claimant compensably injured his back on February 16, 1974. SAIF originally accepted the claim for a laminectomy L4 and fusion from L4-5-S1. The claim was first closed by a June 25, 1977 Determination Order that awarded permanent disability for claimant's low back, left leg, and right leg. Claimant's aggravation rights expired five years thereafter. Claimant has had multiple low back surgeries, right shoulder and wrist surgeries, and bilateral knee surgeries. In December 2002, SAIF accepted several "post-aggravation rights" new medical conditions (L4 foraminotomy, L4-S1 low back fusion, bilateral knee meniscectomies, and L3-4 spinal stenosis). Subsequently, SAIF voluntarily reopened the Own Motion claim for these conditions. On April 8, 2003, SAIF issued an Own Motion Notice of Closure that closed claimant's "post-aggravation rights" new or omitted medical condition for L4 foraminotomy, L4-S1 low back fusion, bilateral knee meniscectomies, and 57 Van Natta 1128 (2005)1129L3-4 spinal stenosis. The Notice of Closure found claimant's condition medically stationary as of June 25, 2002. On June 17, 2003, Dr. Hart opined that claimant required additional surgery, including posterior fixation and fusion from T10 to L5 with instrumentation and laminectomy at L1-L2. (Ex. 125; see Ex. 130-2). On June 18, 2003, we issued an "Own Motion Order of Dismissal." Noting that SAIF...