73 Van Natta 159 (2021)
In the Matter of the Compensation of ANGELA C. GOODNESS, Claimant
WCB No. 18-03994
Oregon Worker Compensation
February 24, 2021
Michael J Orlando, Claimant Attorneys.
SAIF
Legal Salem, Defense Attorneys.
Reviewing Panel: Members Ousey and Woodford.
ORDER
ON REVIEW
Claimant
requests review of that portion of Administrative Law Judge
(ALJ) Ian Brown’s order that upheld the SAIF
Corporation’s denial of her new/omitted medical
conditions claim for TMJ/TMD; and (2) awarded an attorney
fee, but not a penalty under ORS 656.262(1 1)(a) for
unreasonable claim processing. On review, the issues are
compensability and penalties. We reverse in part and affirm
in part.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact.”
CONCLUSIONS
OF LAW AND OPINION
On
September 4, 2016, claimant was injured when a 150-pound
cabinet fell off the wall, hitting the right side of her face
and her right shoulder. (Tr. 14, 15). She sought immediate
medical care. (Exs. 58, 62).
On
October 27, 2016, SAIF accepted a “cervical strain,
thoracic strain, lumbosacral strain, right wrist sprain, left
forehead laceration, facial abrasion, right shoulder
contusion, right arm contusion, right shoulder strain and
right forearm strain.” (Ex. 87).
In June
2018, claimant filed a new/omitted medical conditions claim
for TMJ/TMD. (Ex. 134). SAIF denied the claim, asserting that
those conditions were encompassed within the June 2017
“Disputed Claim Settlement” (DCS) and that the
conditions were not compensably related to the September 2016
work injury. (Ex. 138). Claimant requested a hearing.
In
determining that the TMJ/TMD conditions were not compensable,
the ALJ found Dr. Myall’s opinion persuasively
established that claimant’s work injury was not the
major contributing cause of disability/need for treatment.
Consequently, the ALJ upheld SAIF’s denial.
Furthermore, reasoning that SAIF’s contention that the
previous DCS had “encompassed” the claimed
TMJ/TMD [73 Van Natta 160] conditions was unreasonable, the
ALJ determined that an attorney fee award under ORS 656.262(1
1)(a) was warranted. However, because the claimed conditions
were not compensable, the ALJ determined that there were no
“amounts then due” on which to base a penalty.
Concerning
the compensability issue, claimant contends that her claimed
TMJ/TMD conditions are compensable. Based on the following
reasoning, we agree with claimant’s contention.
To
prevail on her new/omitted medical condition claim, claimant
must prove that the claimed conditions exist, and that the
work injury was a material contributing cause of
disability/need for treatment of those
conditions.1 ORS 656.005(7)(a); ORS 656.266(1);
Robert O. Anderson, [71 Van Natta 866], 867 (2019);
Maureen Y. Graves, [57 Van Natta 2380], 2381 (2005).
If claimant meets that burden and the medical evidence
establishes that the “otherwise compensable
injury” combined at any time with a “preexisting
condition,” SAIF has the burden to prove that the
“otherwise compensable injury” is not the major
contributing cause of disability/need for treatment of the
combined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a);
SAIF v. Kollias, 233 Or.App. 499, 505 (2010);
Jack G Scoggins, [56 Van Natta 2534], 2535 (2004).
Because
of the conflicting medical evidence regarding the...
