71 Van Natta 512 (2019)
In the Matter of the Compensation of DONALD J. DUGAS II, Claimant
WCB No. 17-05720
Oregon Worker Compensation
May 8, 2019
Hooton
& Chen LLP, Claimant Attorneys
Law
Offices Of Kathryn R Morton, Defense Attorneys
Reviewing Panel: Members Ousey and Curey.
ORDER ON REVIEW
The
insurer requests review of those portions of Administrative
Law Judge (ALJ) Jacobson’s order that: (1) awarded
interim compensation benefits; and (2) assessed
penalties/attorney fees for allegedly unreasonable claim
processing. Claimant cross-requests review of those portions
of the ALJ’s order that: (1) upheld the insurer’s
denial of claimant’s new/omitted medical condition
claim for left shoulder rotator cuff tears; and (2) did not
award an insurer-paid attorney fee under ORS 656.383(2) for
obtaining additional temporary disability benefits. On
review, the issues are compensability, interim compensation,
penalties, and attorney fees. We affirm in part and modify in
part.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact” with the
following summary and supplementation.
Claimant
sustained a compensable injury on November 14, 2006, which
was ultimately accepted for right hip conditions including
right iliopsoas tendon strain, right hip bursitis/tendonitis,
chondral “delamentation (sic),” right
hip labral tear, and right hip traumatic arthritis. (Ex.
39-5). The claim was first closed on March 10, 2014. (Ex.
21).
In
January 2014, claimant was evaluated by Dr. Lorber, a
physiatrist, at the insurer’s request. (Ex. 18). In
that evaluation, claimant told Dr. Lorber that he had
experienced “near falls,” but not any
“complete falls.” (Ex. 18-9).
On
September 12, 2014, claimant e-mailed Dr. Wagner’s
office asking for assistance with documenting his disability
from the injury, and describing concerns regarding his left
shoulder due to ongoing symptoms after a fall that had
occurred about six weeks earlier. (Ex. 21 A).
[71 Van
Natta 513] In February 2015, claimant was evaluated by Dr.
Puziss, who noted a history of approximately 20 falls over
the last six or seven years that usually occurred when
claimant’s hip would “catch” and
“giv[e] way.” (Ex. 22-10). Dr. Puziss noted that
claimant had experienced left shoulder pain since he fell
carrying groceries in July 2014. (Id.) He diagnosed
a history of multiple left shoulder contusions/strains
causing chronic left subacromial impingement, left shoulder
adhesive capsulitis, possible left rotator cuff tear and AC
arthritis. (Ex. 22-14).
In
March 2015, claimant was examined by Dr. Dewing, an
orthopedic surgeon, at the insurer’s request. (Ex. 23).
Diagnosing bilateral shoulder pain, Dr. Dewing raised a
concern regarding potential rotator cuff pathology. (Ex.
23-11). Dr. Dewing noted that the reported falls were not
documented in the medical record, and that the shoulder
pathology was likely “multifactorial” and not
work-related. (Id.)
In June
2015, claimant was evaluated by Dr. Toal, an orthopedic
surgeon, at the insurer’s request. (Ex. 25). He
diagnosed bilateral shoulder rotator cuff tendinopathy due to
degenerative changes. (Ex. 25-15, -17). Dr. Toal noted that
there were no medical records diagnosing a contusion or
strain. (Ex. 25-17).
In July
2015, the insurer denied claimant’s new/omitted medical
condition claim for right hip traumatic arthritis, right
lumbosacral facet syndrome, left hip degenerative arthritis,
and a left shoulder contusion/strain. (Ex. 26).
In
October 2016, a hearing was held before a prior ALJ
concerning the compensability of the denied left shoulder
contusion/strain. (Ex. 33). Claimant testified that he had
six or seven significant falls. (Ex. 33-19). He described
falling directly on his left shoulder in July 2014, and
experiencing significant pain and, thereafter, having
difficulty performing basic tasks with his left arm. (Ex.
33-20).
In
January 2017, Dr. Wagner, claimant’s treating
orthopedic surgeon, was deposed. (Ex. 34). Dr. Wagner
explained that, if he had discussed a fall with claimant, it
likely would have been documented in a chart note, or in one
of the letters that claimant sent to him explaining his
medical issues. (Ex. 34-7).
In May
2017, the prior ALJ found the left shoulder contusion/strain
compensable. (Ex. 36). The insurer requested Board review.
[71 Van
Natta 514] In July 2017, claimant was evaluated by Dr.
McCarron regarding his persistent bilateral shoulder
symptoms. (Ex. 38). Dr. McCarron diagnosed bilateral rotator
cuff tendonitis. (Id.)
A
left shoulder MRI was performed on September 26, 2017. The
MRI showed full-thickness tearing of the supraspinatus
tendon, thinning with probable areas of high-grade partial or
full-thickness tearing of the infraspinatus tendon, partial
subluxation of the biceps tendon, and moderately severe
acromioclavicular joint degenerative changes. (Ex. 41).
In
October 2017, Dr. McCarron diagnosed left shoulder full
thickness rotator cuff tear and biceps tendon subluxation.
(Ex. 42). He recommended a left rotator cuff surgical repair.
(Id.)
On
November 2, 2017, claimant signed an 827 form claiming
“damage to left shoulder rotator cuff from fall(s) July
2014” as a new/omitted medical condition. (Ex. 44). Dr.
McCarron signed the form on December 1, 2017. (Id.)
He indicated that claimant was in an “off-work”
status.
On
December 19, 2017, the Board reversed the prior ALJ’s
order, concluding that claimant’s reports of falling on
his left shoulder due to his right hip condition were not
reliable based on the contemporaneous medical records.
Donald J. Dugas, II...
