In re Compensation of Davis, 071321 ORWC, 20-03759

Docket NºWCB 20-03759
Case DateJuly 13, 2021
73 Van Natta 553 (2021)
In the Matter of the Compensation of RUFUS E. DAVIS, Claimant
WCB No. 20-03759
Oregon Worker Compensation
July 13, 2021
          Dale C Johnson, Claimant Attorneys           SAIF Legal Salem, Defense Attorneys          ORDER ON REVIEW          Reviewing Panel: Members Ousey and Woodford.          Claimant requests review of Administrative Law Judge (ALJ) Sencer’s order that: (1) upheld SAIF’s “ceases” denial of his combined lumbar strain condition; and (2) declined to award a penalty and an attorney fee 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 January 2020, SAIF accepted claimant’s low back injury claim as a “lumbar strain combined with pre-existing degenerative disc disease.” (Ex. 15). In July 2020, SAIF issued a denial stating that the “accepted injury” was no longer the major contributing cause of the disability or need for treatment for claimant’s “combined condition of lumbar strain combined with the pre-existing degenerative disc disease.” (Ex. 27). Subsequently, claimant initiated a new/omitted medical condition claim for a “recurrent left L4-5 disc herniation,” which SAIF accepted in September 2020. (Exs. 32, 36).          In upholding SAIF’s “ceases” denial, the ALJ relied on the uncontroverted opinions of claimant’s treating physicians, Drs. Aikawa and Keiper, that the accepted lumbar strain had resolved. Citing Brown v. SAIF, 361 Or 241 (2017), and its holding that a carrier is authorized to issue a denial when the previously accepted medical condition ceases to be the major contributing of the disability and need for treatment for the combined condition, the ALJ upheld SAIF’s denial, despite SAIF’s subsequent acceptance of the “recurrent left L4-5 disc herniation.”          On review, claimant contends that his “otherwise compensable injury” was not “just a lumbar strain,” but also included claimant’s left leg radiculopathy. In doing so, he argues that the radiculopathy is the “prominent symptom” that has “driven this claim.” Thus, claimant argues that, because his left leg symptoms did not improve before SAIF issued its “ceases” denial, the requisite changed circumstances or condition to support the denial did...

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