58 Van Natta 2355 (2006). JAMES S. DALY, Claimant.

• Case Date: September 26, 2006
• Court: Oregon

Oregon Worker Compensation 2006. 58 Van Natta 2355 (2006). JAMES S. DALY, Claimant 58 Van Natta 2355 (2006)In the Matter of the Compensation of JAMES S. DALY, ClaimantOwn Motion No. 04-0456MOWN MOTION ORDER REVIEWING CARRIER CLOSURE Malagon Moore et al, Claimant Attorneys SAIF Legal, Defense AttorneysReviewing Panel: En Banc. Members Langer, Kasubhai, Herman, Lowell, and Biehl. Claimant requests review of the SAIF Corporation's October 8, 2004 "Notice of Closure: Own Motion Claim" (Notice of Closure) that closed his claim with an award of 8 percent (25.6 degrees) additional unscheduled permanent disability compensation for a "post-aggravation rights" new medical condition ("osteoarthritis, bilateral knees").(fn1) See ORS 656.278(1)(b), (2)(d). Claimant requests an additional award of permanent disability up to and including permanent total disability (PTD). We grant PTD. FINDINGS OF FACT Claimant, age 62 at hearing, compensably injured his left knee on February 25, 1984. SAIF previously accepted the following conditions: torn lateral meniscus, left knee; possible anterior cruciate tear, left knee; lumbar strain with radiculopathy; dysthymic disorder; torn medial meniscus, right knee; and lumbar instability. (Ex. 173). On February 4, 2004, SAIF accepted "osteoarthritis, bilateral knees," a "post-aggravation rights" new medical condition. (Id.) Claimant has had several surgeries for the compensable conditions. In 1984, he had surgery for a left knee chondral fracture. In 1985, he had a decompressive left lumbar laminectomy and foraminotomy at L5-S1 with associated fusion. In 1987, the decompressive lumbar laminectomy and foraminotomy at L5-S1 was repeated and L4 was added to the fusion. (See Ex. 17-4). Claimant has a congenital familial tremor(fn2) that affects his hands and fingers. (Exs. 27, 38-7, -16). He was trained for clerical work in the Army in 1960 and 1961, but he was unable to perform the work satisfactorily because of the tremor and was honorably discharged. Claimant's 5-year aggravation rights run from a December 17, 1987 Determination Order. (Exs. 8, 173). His aggravation rights expired on December 17, 1992. After the 1984 injury, claimant completed 16 credits in a community college, in conjunction with a vocational retraining program as an alcohol and drug counselor. (Exs. 23A, 43A; Tr. 31). He had difficulties with writing because of his tremor and also had problems with his back and legs. (Ex. C-1, -8, -14, -18, -19, -23, -34). The amount of sitting increased his back problems and he also had right knee problems for which surgery was recommended. (Exs. C-1, -19, -23, -26; 12, 14, 15, 38-13). Claimant was highly motivated to complete his training, but he stopped the program in early 1989 when the associated physical and mental stress caused him to experience increased low back pain, as well as a depressive disorder. (Exs. 12, 15, 16, 17-5). Claimant was released for a retraining program with a reduced schedule, but SAIF did not approve this modification and the vocational training ended in March 1990. (Ex. 45). In 1991, claimant stopped cooperating with his vocational counselor. (See Ex. 96-3). A May 9, 1990 Determination Order awarded 55 percent unscheduled permanent disability for claimant's low back condition and depressive disorder. (Ex. 47). A March 1991 Opinion and Order set aside SAIF's denial of claimant's right knee condition. (Ex. 62). On April 4, 1991, Dr. Whitney performed right knee surgery. The postoperative diagnosis was torn medial meniscus with inferior flap tear and plica syndrome. (Ex. 66). A July 18, 1991 Determination Order awarded 5 percent scheduled permanent disability for loss of use or function of claimant's right knee. (Ex. 76). A December 16, 1991 Order on Reconsideration increased claimant's scheduled permanent disability award. (Ex. 82). A February 1992 physical capacity evaluation concluded that claimant could perform sedentary work. (Ex. 84). A September 16, 1992 Opinion and Order denied claimant's request for PTD and modified the July 18, 1991 Determination Order to award 10 percent scheduled permanent disability for the right leg (knee), 10 percent scheduled permanent disability for the left leg (knee), and 72 percent unscheduled permanent disability (for his low back and psychiatric conditions), in lieu of all previous awards. The ALJ also set aside SAIF's May 1992 denial of claimant's then-current psychological condition. (Ex. 96). The Board affirmed those portions of the ALJ's order. (Ex. 101). In February 1997, claimant had additional surgery for a recurrent tear of the right medial meniscus. (Ex. 127). In August 2003, claimant sought treatment from Dr. Sandell for increasing pain in his low back and knees. Dr. Sandell reported that claimant had no change in status until about 4 months ago, when he started delivering newspapers 16 hours a week. Dr. Sandell's impression was acute flare of underlying pain from the spinal fusion and the arthritis in both knees. Dr. Sandell advised claimant to quit his job. (Ex. 157). In October 2003, Dr. Sandell reported that claimant's condition had "calmed down" since he quit his job, but he still had pain in his low back and knees. (Ex. 159). On February 4, 2004, SAIF voluntarily reopened claimant's 1984 injury claim for a "post-aggravation rights" new medical condition ("osteoarthritis, bilateral knee"). (Exs. 161, 173). On June 8, 2004, SAIF denied claimant's request for acceptance of a "post-aggravation rights" new medical condition of lumbar osteoarthritis. (Ex. 171). Claimant requested a hearing. The ALJ upheld SAIF's denials of claimant's L2-3 degenerative disc disease and L3-4 lumbar osteoarthritis. (Ex. 196). The ALJ's order was not appealed, and the Board denied claim reopening for claimant's lumbar osteoarthritis. (Ex. 197). On June 30, 2004, Dr. Sandell reported that claimant complained of ongoing lumbar and knee pain and increased sciatic pains. (Ex. 175). An MRI showed mild to moderate degenerative changes in the lumbar spine, greatest in the L3-4 facets. (Ex. 177). In August 2004, Dr. Sandell recommended moderate activity and range of motion exercises, but did not recommend any back surgery. (Ex. 178). On October 8, 2004, SAIF issued a "Notice of Closure: Own Motion Claim" that awarded 8 percent additional scheduled permanent disability compensation for a "post-aggravation rights" new medical condition ("osteoarthritis, bilateral knees"). (Ex. 188). SAIF declared claimant medically stationary as of August 23, 2004. Claimant requested Board review, seeking an additional award of permanent disability up to and including PTD and referral of this matter to the Hearings Division for a fact-finding hearing. On January 25, 2005, we referred the matter to the Hearings Division for a fact-finding hearing and deferred our review pending issuance of the ALJ's recommendation. James S. Daly, 57 Van Natta 200 (2005). At the August 9, 2005 fact-finding hearing, claimant testified, as well as Ms. Hartgrave and Ms. Sturges, both vocational experts. On January 17, 2006, the ALJ issued an Own Motion recommendation for PTD benefits and an attorney fee. At the time of the 1984 injury, claimant had been performing carpentry and construction work for about 15 years. Before that, he had worked as a shoe shine boy, dishwasher, forklift driver, warehouseman, painter and carpenter's helper, as well as a grocery clerk. (Tr. 9; Exs. 38-18, 192A-6). Claimant obtained his GED in the Army and was in college for two years, majoring in music. (Exs. 23A, 43A, 193-5). He had to drop out of music because of hand tremors. (Tr. 30). After claimant's vocational training ended in 1990, he enrolled in computer classes and looked for work at a hardware store, gas station, grocery stores and restaurants. (Tr. 21-22). In 1999, he started delivering newspapers 2 to 4 hours per week. (Ex. 148). In April 2000, he tried doing that on a daily basis, but it became too much for him after 2 or 3 days. (Ex. 148-4). He continued to treat with Dr. Martin, psychiatrist. In the spring of 2003, claimant began a new job using his car to deliver newspapers six to seven days a week, but his low back and knee pain increased and he quit that job. (Tr. 18-20; Ex. 156-6, -7). Claimant did not work again until about three months prior to the hearing, when he began delivering newspapers for a friend for two hours at a time, one day a week. (Tr. 15-16). Claimant continued to perform this job at the time of the hearing. CONCLUSIONS OF LAW AND OPINION Claimant's 1984 injury claim was reopened for the processing of a "post-aggravation rights" new medical condition ("osteoarthritis, bilateral knees"). Such claims may qualify for payment of permanent disability compensation, including PTD. ORS 656.278(1)(b); Goddard v. Liberty Northwest Ins. Corp., 193 Or App 238 (2004); Sherlee M. Samel, 56 Van Natta 931, 938 (2004); Jimmy O. Dougan, 54 Van Natta 1213, on recons 54 Van Natta 1552 (2002), aff'd Dougan v. SAIF, 193 Or App 767 (2004), vacated 339 Or 1 (2005).(fn3) Claimant asserts that he is entitled to PTD, which is defined as "the loss, including preexisting disability, of use or function of any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation." ORS 656.206(1)(a).(fn4) At hearing, SAIF argued that claimant's bilateral knee osteoarthritis was the only condition that could...