73 VanNatta 70 (202l)
In the Matter of the Compensation of LUIS DELEON, Claimant
WCB No. 20-00892
Oregon Worker Compensation
January 28, 2021
Pancic
Law, Claimant Attorneys
Gress,
Clark, Young, & Schoepper, Defense Attorneys
Reviewing Panel: Members Ousey and Woodford.
ORDER ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ) Mills's
order that: (1) upheld the self-insured employer's
"ceases" denial of his combined L4-5 condition; and
(2) declined to award penalties and attorney fees for
allegedly 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.
In
upholding the employer's "ceases" denial, the
ALJ relied on the opinion of Dr. Rush, an orthopedic surgeon
who examined claimant at the employer's request. The ALJ
reasoned that Dr. Rush's opinion addressed the ongoing
compensability of the accepted combined condition at issue,
unlike the opinion of Dr. Toal, an orthopedic surgeon who
examined claimant at the employer's request. Moreover,
the ALJ declined to rely on the opinion of NP Kubik,
claimant's attending physician, reasoning that NP Kubik
had initially concurred with Dr. Rush's opinion but had
subsequently changed her opinion without sufficient
explanation.
On
review, claimant contends that Dr. Rush did not rely on an
accurate history when he concluded that claimant's
otherwise compensable lumbar strain had resolved by October
10,2016. Specifically, claimant argues that it was incumbent
on Dr. Rush to consider the subsequent November 10, 2016,
closure of claimant's claim, which ultimately resulted in
a 2 percent whole person impairment award. Under such
circumstances, claimant asserts that Dr. Rush's opinion
is insufficient to meet the employer's burden of proof.
For the following reasons, we affirm the ALJ's order.
ORS
656.262(6)(c) authorizes a carrier to deny an accepted
combined condition if the "otherwise compensable
injury" ceases to be the major contributing...
