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3, 2018, by stipulation, the employer rescinded its denial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...