No. 07-03328. WILLIAM R. SQUIRES, Claimant.
Court | Oregon |
Oregon Worker Compensation
2008.
No. 07-03328.
WILLIAM R. SQUIRES, Claimant
In the Matter of
the Compensation of WILLIAM R. SQUIRES, ClaimantWCB Case No. 07-03328ORDER ON REVIEWFloyd H Shebley, Claimant Attorneys
VavRosky MacColl Olson et al, Defense AttorneysReviewing Panel: Members Langer and
Biehl.The self-insured employer requests review of that portion of
Administrative Law Judge (ALJ) Fisher's order that set aside its denial of
claimant's new or omitted medical condition claim for facet syndrome at L4-5
and L5-S1. In his brief, claimant challenges that portion of the ALJ's order
that upheld the employer's denial of his aggravation claim for a low back
condition. On review, the issues are compensability and aggravation. We affirm
in part and reverse in part.
FINDINGS OF FACT
We adopt the ALJ's findings of fact and provide the following
summary. Claimant was compensably injured on March 20, 2004, when he slipped on
ice while carrying a 40-pound box of frozen food. He did not seek medical
treatment until May 27, 2004. Claimant initially treated with Dr. Wilson. The
employer accepted an acute lumbar strain. (Ex. 23). Claimant's back condition
was found medically stationary on January 6, 2005. (Exs. 38-39). The claim was
closed on March 11, 2005 without an award of permanent disability. (Ex. 43).
Claimant testified that he continued to experience back pain.
On July 23, 2006, claimant signed an "801" form that referred to low back pain
and described the incident where he slipped on ice. (Ex. 49). A questionnaire
signed on the same day indicated that claimant had the same pain since the
original injury, but it started getting worse in May. (Ex. 48).
On September 21, 2006, the employer issued a denial, explaining
that claimant's "low back pain" was not compensably related to his employment
with the employer "on or about July 21, 2006." (Ex. 67).
On February 15, 2007, claimant signed an aggravation claim
form. (Ex. 85). The aggravation claim was denied on May 21, 2007. (Ex. 93).
Claimant requested a hearing on both denials.
CONCLUSIONS OF LAW AND OPINION
Aggravation
We adopt and affirm that portion of the ALJ's order that upheld
the employer's denial of claimant's aggravation claim for a low back condition.
Low Back Condition
On September 21, 2006, the employer issued a denial, explaining
that claimant's "low back pain" was not compensably related to his employment
with the employer "on or about July 21, 2006." (Ex. 67).
We begin by clarifying the issue litigated at hearing,
Claimant's attorney explained that the employer's first denial denied a new
injury and claimant's "current condition." (Tr. 6). The employer's attorney
responded that the September 21, 2006 denial was a denial of a new back injury,
rather than a "current condition denial." (Id.) Later, the
employer's attorney explained that it appeared the parties could agree that
claimant did not have an acute injury on July 21, 2006, and that the dispute
was whether the facet joint conditions diagnosed by Dr. Long were related to
the 2004 work injury. (Tr. 10).
The ALJ's order explained that the disputed issue involved
claimant's "current low back condition," which claimant asserted was a problem
with the L4-5 and L5-S1 facet joints caused by the March 2004 injury. Claimant
testified that he did not have a new back injury in July 2006. (Tr. 24, 30).
Under these circumstances, notwithstanding that the employer's September 21,
2006 denial denied claimant's "low back pain" as not compensably related to his
employment "on or about July 21, 2006" (Ex. 67), the record indicates that the
parties agreed to litigate a new or omitted medical condition claim for L4-5
and L5-S1 facet syndrome. See Weyerhaeuser Co. v. Bryant, 102
Or App 432, 435 (1990) (when it is apparent that the parties tried a case by
agreement with a particular issue in mind, it was improper for the ALJ and
Board not to decide that issue).
Claimant must establish the existence of his claimed
conditions, and that the work injury was a material contributing cause of his
need for treatment or disability for those conditions. See Betty J.
King, 58 Van Natta 977 (2006) (the claimant must independently
establish compensability of a new or omitted medical condition by proving that
the work injury is a material contributing cause of the disability or need for
treatment); Maureen Y. Graves, 57 Van Natta 2380, 2381 (2005)
(proof of the existence of the condition is a fact necessary to establish the
compensability of a new or omitted medical condition). Neither party challenges
the ALJ's conclusion that a "material cause" standard applies.
The ALJ explained that, based on the...
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