In re Compensation of Lamanna, 071219 ORWC, 18-03878

Case DateJuly 12, 2019
CourtOregon
71 Van Natta 784 (2019)
In the Matter of the Compensation of BENEDICT LAMANNA, Claimant
WCB No. 18-03878
Oregon Worker Compensation
July 12, 2019
          Michael J Orlando, Claimant Attorneys           Wallace Klor Mann Capener, Defense Attorneys           Reviewing Panel: Members Ousey and Woodford.           ORDER ON REVIEW          The self-insured employer requests review of those portions of Administrative Law Judge (ALJ) Jacobson’s order that: (1) awarded additional temporary total disability (TTD) benefits; and (2) assessed penalties and penalty-related attorney fees for allegedly unreasonable claim processing. On review, the issues are temporary disability, penalties, and attorney fees. We affirm in part and reverse in part.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact” as summarized and supplemented below.          On November 8, 2017, claimant sustained a compensable back injury. (Ex. 2). On November 11, 2017, Dr. Holmer examined claimant, diagnosed a lumbar strain and left-sided sciatica, and released claimant to light-duty work. (Exs. 2, 6).          On November 17, 2017, Dr. Morton, claimant’s attending physician, released him to modified duty through November 24, 2017. (Exs. 4A, 5).          On November 30, 2017, the employer denied claimant’s injury claim. (Ex. 8).          On December 5, 2017, Dr. Dupre examined claimant and restricted him, for one week, from running, bending beyond 45 degrees, sitting on the floor, and lifting greater than 15 pounds. (Ex. 11-1).          On December 13, 2017, Dr. Walters evaluated claimant and diagnosed a lumbar strain with intermittent radicular symptoms. (Ex. 12-1). Dr. Walters released claimant to modified duty for 30 days. (Ex. 12-2).          [71 Van Natta 785] There are no further treatment records between December 13, 2017 and May 17, 2018.          On May 3, 2018, by stipulation, the employer rescinded its denial and agreed to accept a lumbar strain condition. (Exs. 13, 14). On May 14, 2018, the employer issued an initial Notice of Acceptance for a nondisabling lumbar strain condition. (Ex. 15).          On May 17, 2018, Dr. Petering examined claimant and diagnosed chronic midline low back pain without sciatica, left leg weakness, and degenerative disk disease. (Ex. 16-2). Dr. Petering released claimant to modified work, with restrictions of no lifting, carrying, or pulling more than 10 pounds, without an end date. (Ex. 18).          On May 21, 2018, claimant requested reclassification of his claim to disabling, which the employer denied. (Ex. 19).          On June 12, 2018, the employer informed its claim administrator that it had terminated claimant’s employment on January 18, 2018. (Ex. 23).          On June 26, 2018, Dr. Petering examined claimant and continued to release him to modified work. (Exs. 26, 36A).          The employer did not pay any temporary disability benefits until August 7, 2018. Claimant requested a hearing, seeking additional TTD benefits, penalties, and attorney fees.          CONCLUSIONS OF LAW AND OPINION          The ALJ found that, on May 17...

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