73 Van Natta 197 (2021)
In the Matter of the Compensation of RUDY HERNANDEZ, Claimant
WCB No. 18-01772
Oregon Worker Compensation
March 10, 2021
Schoenfeld & Schoenfeld, Claimant Attorneys.
Reinisch Wilson Weier, Defense Attorneys.
Reviewing Panel: Members Curey and Ousey.
ORDER
ON REVIEW
The
self-insured employer requests review of that portion of
Administrative Law Judge (ALJ) Fulsher’s order that set
aside its denial of claimant’s injury claim for a left
foot condition. Claimant cross-requests review of that
portion of the ALJ’s order that awarded a $22,500
attorney fee for prevailing over the denial. On review, the
issues are compensability and attorney fees.
We
adopt and affirm the ALJ’s order with the following
supplementation to address the compensability issue.
Analyzing
the claim as an injury, the ALJ found that the opinion of Dr.
Hegewald (as supported by Drs. Jenewein and Bullock) was more
persuasive than the contrary opinion of Dr. Dowd, and
established that claimant’s February 5, 2018, injury
was a material, and the major, contributing cause of the
disability/ need for treatment of his left foot condition.
Reasoning that the medical evidence did not establish that
claimant had a statutory “preexisting condition”
that combined with his “otherwise compensable
injury,” the ALJ set aside the employer’s denial
of claimant’s left foot injury claim.
On
review, the employer argues that the claim should be analyzed
as an occupational disease for a left Charcot foot condition,
and that claimant did not meet his burden of proving that his
work activities were the major contributing cause of the
condition. If analyzed as an injury, the employer asserts
that claimant did not establish that his February 5, 2018,
work injury was a material contributing cause of his
disability/need for treatment of a left foot condition or,
alternatively, that Dr. Dowd’s opinion persuasively
establishes that claimant’s work injury combined with
his preexisting arthritic left Charcot foot condition, and
that the injury was never the major contributing cause of the
disability/need for treatment of the combined condition. For
the following reasons, we find claimant’s February 5,
2018, left foot injury claim to be compensable.
[73 Van
Natta 198] At the outset, we address the employer’s
contention that claimant’s claim should be analyzed as
an occupational disease for left Charcot foot, which
developed gradually over time. Claimant asserts that the
parties agreed at the outset of the hearing that the issue
was the compensability of claimant’s February 5, 2018,
claim for a left foot injury, and that the employer raised
the “occupational disease” issue for the first
time during closing arguments.
Our
first task is identifying the appropriate legal standard for
determining compensability. Dibrito v. SAIF, 319 Or.
244, 248 (1994) (the Board’s first task is to determine
which provisions of the Workers’ Compensation Law are
applicable); Kenneth C. Molz, 52 Van Natta 1306,
1308 (2000); Daniel S Field, 47 Van Natta . However,
we do so in the context of the parties’ positions
regarding the disputed issues. Stephanie M. Mayotte,
61 Van Natta 1716, 1717 (2009); Randall D. Marks, 56
Van Natta 2937, 2938 (2004).
Issues
other than those that the parties agreed to litigate are
beyond the scope of issues to be decided by an ALJ. Juan
Solano-Viviano, 63 Van Natta 2131, 2132 (2011);
Eleazar Andrade, 60 Van Natta 3156, 3158 (2008);
Robin A. Rohrbacker, 53 Van Natta 51, 52 (2001) (an
ALJ’s scope of review is limited to the issues raised
by the parties). We have consistently held that we will not
consider an issue raised for the first time during closing
arguments. See Fister v. South Hills Health Care,
149 Or.App. 214 (1997) (absent adequate reason, Board should
not deviate from its well-established practice of considering
only those issues raised by the parties at hearing); see,
e.g., Neftali Soto, 69 Van Natta ; Charlene P.
Brumaghim, 53 Van Natta (declining to address the
carrier’s “preexisting condition” defense
raised for the first time during closing arguments where the
denial did not reference a preexisting condition, and the
carrier agreed at hearing that the issue was compensability
of the claimant’s new/omitted medical condition claim
based on objective findings); Lawrence E. Millsap,
47 Van Natta (declining to address a “scope of
acceptance” theory raised by the claimant for the first
time during closing arguments); Larry L. Schutte, 45
Van Natta (declining to address the occupational disease
issue/theory raised by the claimant for the first time during
closing arguments).
Here,
in its April 5, 2018, denial, the employer acknowledged
receiving claimant’s claim “for a left foot
condition which has been variously diagnosed as LisFranc
fracture, Charcot foot and fractures involving multiple other
bones in your left foot.” (Ex. 22). The employer
indicated that it was unable to determine that claimant
“sustained a compensable injury” in the course
and scope of employment, noting that left foot condition
appeared to have been caused by [73 Van Natta 199]
preexisting conditions. (Id.) The employer then
stated that it was issuing “a denial of compensability
of...
