73 Van Natta 185 (2021)
In the Matter of the Compensation of PENELOPE M. MCCAVITT, Claimant
WCB No. 19-05950
Oregon Worker Compensation
March 5, 2021
Julene
M Quinn LLC, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: Members Curey and Ousey.
ORDER
ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ)
Ogawa’s order that: (1) upheld the SAIF
Corporation’s denial of her occupational disease claim
for a right arm condition; (2) did not address an alleged
denial of a left arm condition; and (3) did not award an
attorney fee for prevailing over an allegedly void denial. On
review, the issues are compensability, scope of the issues,
and attorney fees.
We
adopt and affirm the ALJ’s order in regard to the right
elbow condition, and offer the following supplementation
regarding the alleged left arm condition denial and
associated attorney fees.
In
August 2019, claimant completed an 801 form, describing
symptoms in her right hand and arm. (Ex. 13). In September
2019, SAIF denied a claim for “an occupational disease
described as a left upper extremity condition, right upper
extremity condition.” (Ex. 22). While claimant received
treatment for her right elbow symptoms, she never claimed a
left arm condition, nor did she seek treatment for her left
arm. (Exs. 13, 21, 24).
At
hearing, both parties agreed that the issue was the
compensability of an occupational disease claim for a right
elbow condition, along with attorney fees and costs should
claimant prevail on that issue. (Tr. 1). Claimant’s
counsel further clarified that “despite SAIF’s
denial,” what was at issue was claimant’s
“right arm condition only.” (Tr. 2). SAIF’s
counsel responded in agreement, stating that the issue was
“an occupational disease claim for a right upper
extremity condition.” (Tr. 3).
The ALJ
upheld SAIF’s denial of claimant’s occupational
disease claim for a right elbow condition. Reasoning that Dr.
Verheyden’s opinion did not persuasively establish that
claimant’s work activities were the major...
