71 Van Natta 1085 (2019)
In the Matter of the Compensation of MICHAEL BARNES, Claimant
WCB Nos. 18-04162, 18-03693
Oregon Worker Compensation
September 27, 2019
Elmer
& Brunot PC Law Offices, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: Members Woodford and Ousey.
ORDER ON REVIEW
The
SAIF Corporation requests review of Administrative Law Judge
(ALJ) Naugle’s order that: (1) set aside its denial of
claimant’s injury claim for a right upper extremity
condition; and (2) awarded penalties and a penalty-related
attorney fee for unreasonable claim processing. On review,
the issues are compensability, penalties, and attorney fees.
We
adopt and affirm the ALJ’s order with the following
supplementation regarding compensability.
In
setting aside SAIF’s denial, the ALJ found that
claimant had established legal causation based on his
testimony and the relatively consistent reporting of the
mechanism of injury. Moreover, the ALJ concluded that the
opinion of Dr. Hook, claimant’s attending physician,
supported a determination that the February 2018 work injury
was a material contributing cause of the need for
treatment/disability for the right upper extremity condition.
Finally, in awarding a penalty and related attorney fee, the
ALJ determined that SAIF had not provided a reasonable
explanation concerning its untimely denial.
On
review, SAIF contends that the record does not establish
legal or medical causation. As a result, SAIF argues that a
penalty and related attorney fee are not warranted. For the
following reasons, we disagree with SAIF’s contentions.
Claimant
must prove both legal and medical causation by a
preponderance of the evidence. Harris v. Farmer’s
Co-op Creamery, 53 Or.App. 618, rev den, 291
Or. 893 (1981); Carolyn F. Weigel, 53 Van Natta 1200
(2001), aff’d without opinion, 184 Or.App. 761
(2002). Legal causation is established by showing that
claimant engaged in potentially causative work activities;
whether those work activities caused claimant’s
condition is a question of medical causation. Darla
Litten, 55 Van Natta 925, 926 (2003). Whether claimant
established legal causation hinges principally on his
credibility/reliability.
[71 Van
Natta 1086] In determining the credibility of a
witness’s testimony, we normally defer to an
ALJ’s demeanor-based credibility finding. See Erck
v. Brown Oldsmobile, 311 Or. 519, 526 (1991) (on de
novo review, it is a good practice for an agency or
court to give weight to the factfinder’s credibility
assessments). Where, as here, the ALJ does not make
demeanor-based credibility findings, and the credibility
issue concerns the substance of a witness’s testimony,
we are equally qualified to make our own credibility
determination. Coastal Farm Supply v. Hultberg, 84
Or.App. 282, 285 (1987). Inconsistencies in the record may
raise such doubt that we are unable to conclude that material
testimony is reliable. George v. Jolley, 56 Van
Natta 2345, 2348 (2004), aff’d without
opinion, 202 Or.App. 327 (2005). We evaluate the
credibility of a witness based on an objective review of the
substance of...
