Category: Caselaw Update
Chronic Condition Award Does Not Automatically Result in Work Disability in Oregon
The Oregon Workers’ Compensation Board recently issued a helpful decision when it comes to determining permanent work restrictions and dealing with the reconsideration proceeding. Richard McConnell, 74 Van Natta 536 (2022). The attending physician provided a report confirming claimant was released to regular duty regarding the accepted condition (CTS), but…
When can time loss payments cease in Oregon?
Time-loss payments, penalties, and ambiguous medical opinions are hallmarks of the workers’ compensation system. The Oregon Workers’ Compensation Board recently released an opinion implicating all three when it ruled an employer was subject to penalty for unreasonably failure to pay time-loss based on interpretation of the attending physician’s chart note….
Oregon Workers’ Compensation Board Signals That Providing Duplicative Discovery May Result in Penalties/Attorney Fees
In Serge Alexandre, 74 Van Natta 410 (June 1, 2022), SAIF requested review of an order that awarded a penalty and penalty-related attorney fee for allegedly unreasonable claim processing regarding duplicative discovery. The Board held that claimant had not raised a penalty issue at the hearing level regarding allegedly unreasonable…
Who is the attending provider? New Oregon Court of Appeals case provides some insight.
In Oregon, when a worker is treating with multiple providers it can be difficult to identify the attending provider is for purposes of claim closure. The rules dictate that an attending provider is primarily responsible for the care and treatment of the compensable injury, authorizing temporary disability, and prescribing and…
Board of Industrial Insurance Appeals Makes In Re Kathleen Houlihan a Significant Decision
On April 29, 2022, the Washington Board of Industrial Insurance Appeals published its new “Significant Decisions” from 2021. The Board issues hundreds of Decisions & Orders each year but designates only a select few as “Significant Decisions.” The Board’s Significant Decisions are important because they provide the Industrial Appeals Judges…
Oregon WCB Issues Troubling Decision Regarding New/Omitted Claim Processing Obligations
The Oregon Workers’ Compensation Board recently issued a troubling decision in Luis F. Nava, 74 Van Natta 372 (2022), which impacts how it finds employers/insurers/administrators must process compensable injury claims. In Nava, claimant sustained a compensable work injury on March 13, 2017. Two days later, a left knee MRI showed…
Ninth Circuit Agrees Temporary Impairments Can Be Disabilities Under ADA
A recent decision by the Ninth Circuit confirms that temporary medical conditions can qualify as disabilities under the Americans with Disabilities Act (ADA). The outcome in Shields vs. Credit One Bank N.A. is consistent with recent rulings from several other federal courts of appeals finding that transitory impairments can trigger…
Partial Denial does not Allow Apportionment of Impairment at Claim Closure in Oregon
On April 21, 2022, the Oregon Supreme Court issued its decision in Johnson v. SAIF Corporation, 369 Or 577 (2022). Johnson caught her hand in an elevator door at work. SAIF accepted various finger contusions/abrasions, but later denied a request to add a rotator cuff tear to the claim. The…
Oregon Supreme Court Affirms Narrow Construction of Exemption To Subject Worker Statute
Employee or contractor? The classification of a worker can impact what benefits a worker is entitled to, and the trucking industry has often been at the forefront in the debate over classification. The Oregon Supreme Court recently held a restricted leasehold interest in a vehicle is insufficient to exempt a…
Oregon Court of Appeals determines injury during paid break is not compensable
Are we seeing a shift in the Court of Appeals in relation to injuries during paid breaks? Recently, in Watt v. SAIF, the Court of Appeals determined an injury that arose while a worker was engaged in an employer sponsored wellness program was not compensable. In Mandes v. Liberty Mutual,…
Is an Off-Premises Exercise Injury Compensable When Participating in an Employer Wellness Program?
In the recent Watt case, the Oregon Court of Appeals considered compensability of a claim where the worker was exercising off premises as part of an employer sponsored wellness program and was injured. Watt v. SAIF, 317 OrApp 105 (1/20/22). Claimant worked a desk job. She participated in an employer…
Oregon Court of Appeals issues another decision scrutinizing combined condition defenses
We often discuss combined condition acceptances and denials as useful claim processing tools, particularly in closing a claim which may otherwise be difficult to close, but also for apportioning impairment at claim closure and defending against compensability if a claimant has a preexisting condition. ORS 656.005(7)(a)(B) states that “if an…
Oregon Course and Scope Cases Focusing on Where Injury Occurred
In two recent cases, the Oregon Court of Appeals found two off-premises injuries compensable. Charles Davis v SAIF, 316 Or App 301 (2021); Lahna Lynn v SAIF, 315 Or App 720 (2021). In Davis, an off-duty pool hall manager verbally escorted a troublesome customer out to the sidewalk. Claimant flicked…
Washington Supreme Court Issues Ruling on WISHA Violations for Staffing Agencies
In the recent Tradesman case, the Washington Supreme Court addressed whether in the joint employer context, staffing agencies may be liable employers for safety violations under WISHA. Labor & Industries v. Tradesmen International, LLC, 198 Wn.2d 524 (2021). The Washington Supreme Court consolidated two cases involving separate staffing agencies, Tradesman…
Washington Court of Appeals Issues Decision Restricting Type of Evidence to Rebut Firefighters’ Presumption
In a recently published decision, Bradley v. City of Olympia, the Washington Court of Appeals clarified the type of evidence an employer or the Department should present to rebut the presumption a firefighter’s cancer is work-related. RCW 51.32.185 establishes a rebuttable presumption for firefighters that cancer is an occupational disease….
On remand from the Supreme Court, Oregon’s Workers’ Compensation Board issues decision addressing whether a referral for a noncompensable condition must be covered under a claim
Courts have made clear that pursuant to ORS 656.245(1), employers are required to pay for “medical services for conditions caused in material part by the injury,” but that diagnostic services are compensable only if they are “necessary to determine the cause or extent of a compensable injury.” In other words,…
Oregon Court of Appeals Expands on Supreme Court’s Holding in Caren in Robinette v. SAIF
Last year, in Caren v. Providence Health System Oregon the Oregon Supreme Court held that without a preclosure combined condition denial employers must pay the full measure of impairment stemming from a combined condition where the work injury was a material contributing cause of the impairment as a whole. In…
Court of Appeals reconsiders Meyers v. SAIF in light of the Supreme Court’s opinion in Gadalean
Meyers v. SAIF has been a long time coming– the case has been on appeal since 2013, traveling all the way up to the Oregon Supreme Court which remanded the case to the Court of Appeals in 2019. It appears, however, we finally have an answer to the question of…
Washington Court of Appeals opinion serves as a strong reminder to double check filing requirements for appealing BIIA orders
On September 8, 2020, the Washington Court of Appeals published a decision that serves as a reminder of the importance of double checking state and local rules in order to timely and appropriately file appellate documents. In Long Painting Co., Inc. v. Mark Donkel, the Court of Appeals ruled the…
Ninth Circuit Court of Appeals Upholds Hanford Presumption Law
On August 19, 2020, the Ninth Circuit issued an opinion finding Washington was not in violation of federal law when it implemented HB 1723, also known as the “Hanford Presumption”. HB 1723 was signed into law in March 2018 and created a presumption that certain illness or conditions diagnosed in…
Oregon Court of Appeals Clarifies Occupational Disease Standard
In a recent decision, the Court of Appeals clarified a worker’s burden of proof in an occupational disease claim. Johnston v. Gordon Trucking – Heartland Express, 305 Or App 531 (2020). The claim for lumbar arthritis was denied in part based on medical evidence confirming claimant’s aging process/genetics was an…
The Oregon Court of Appeals doubles down on the two-prong Roseburg Forest test making it easier for a presumptively responsible employer to shift responsibility
In April 2020, the Court of Appeals issued a significant decision regarding responsibility cases. In NAES Corporation v. SCI 3.2, Inc., 303 Or. App. 684 (2020), the issue was whether the Board erroneously focused on “probability” and not “possibility” of contribution in determining that claimant’s prior work exposure was the…
In the midst of COVID-19 pandemic, Oregon Court of Appeals issues troubling ruling for processing new/omitted condition claims
The Oregon Court of Appeals issued its decision in Coleman v. SAIF, 304 Or App 122 (2020) on May 13, 2020. Claimant filed a claim for a left knee injury on June 12, 2015. On June 29, 2015, claimant and his attending physician submitted an 827 form for a new/omitted…
Oregon Supreme Court rules that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable
In a much-awaited decision, the Oregon Supreme Court recently ruled in Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019) that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable under ORS 656.245(1)(a). In relevant part, ORS 656.245(1)(a) states that…
Court of Appeals Case Reaffirms Objective Evidence Required For Reopening
In Hendrickson v. Dep’t of Labor & Indus., the Washington Division One Court of Appeals reaffirmed what evidence must support a reopening application. Claimant injured her middle and lower back in October 2007. The Department closed her claim in May 2012 with a category 4 dorso-lumbar impairment award. Just prior…
