Game changers? Recent decisions from the Oregon appellate courts

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1 Game changers? Recent decisions from the Oregon appellate courts Julie Masters, Appellate Attorney Brian Worthington, Claims Supervisor

2 Schleiss v. SAIF: A surprising Supreme Court opinion surprise surprise surprise

3 Schleiss facts... A lumbar strain claim closed with no permanent partial disability. Claimant requested reconsideration and the medical arbiter found some limited range of motion. The arbiter stated he would attribute the findings mainly to the off-the-job factor. He apportioned 33 percent of the problem to the work injury and 67 percent secondary to his pre-existing mild degenerative joint disease and long history of smoking. The department applied its rule for apportioning impairment between the accepted condition and unrelated conditions.

4 Schleiss Court of Appeals arguments Claimant argued to the Court of Appeals that he should be: Entitled to work disability Entitled to a 5 percent chronic condition award for significant limitation in repetitive use Entitled to the full award for range of motion without apportionment The Court of Appeals rejected all his arguments.

5 Schleiss Supreme Court arguments Claimant petitioned for Supreme Court review. He argued that his impairment should not have been apportioned. Material cause is the default standard of proof for workers compensation. The injury was a material cause of his impairment. Aging should not be a reason to reduce his award. The apportionment rule is invalid.

6 Combined condition timeline Mahonia Hall creates combined conditions and major cause test, worker burden of proof, notice of acceptance 1990 SB 485 limits preexisting conditions to previously treated or arthritic, and shifts burden to employer to prove injury not major cause 2001 SB 369 reforms reassert combined conditions, create new and omitted condition claims requiring written notice, closure of denied combined conditions 1995 Schleiss decision holds non-qualified preexisting conditions may not be apportioned out at closure 2013

7 Schleiss: Supreme Court decision Only qualified preexisting conditions are legally recognizable. Claimant s preexisting conditions were not qualified. The legislature would not logically have allowed apportionment of unrecognized preexisting conditions at closure when these conditions could not be denied in a true combined condition claim.

8 Schleiss: What wasn t decided The court did not say impairment is rated on a material cause standard. The court did not say that the apportionment rule is invalid for all purposes.

9 SAIF response to the Schleiss decision Policies on closing injury claims Developing evidence that conditions are qualified preexisting conditions in appropriate claims Reserving for paying disability awards for non-qualified preexisting conditions

10 Post-Schleiss experience Case examples Non-apportionment when no impairment is due the accepted conditions not due to compensable injury

11 Brown v. SAIF: Do accepted conditions matter anymore?

12 Brown v. SAIF background Worker had a prior non-work back injury with fusion. Worker injured back lifting tire chains. SAIF accepted a strain. Worker requested acceptance of strain combined with preexisting degenerative disc disease. SAIF ordered to accept in litigation.

13 Brown v. SAIF issue SAIF issued a denial when the strain ceased to be the major contributing cause of the combined condition. The Workers Compensation Board affirmed the denial, but one member wrote a lengthy concurring opinion arguing that the compensable injury is not limited to the accepted conditions.

14 Brown v. SAIF decision Claimant appealed and the Court of Appeals reversed. The court agreed with the concurring board member that acceptances do not determine the scope of a claim. Case was remanded to determine whether the compensable injury-incident had ceased to be the major contributing cause of the combined condition.

15 Appeal to the Oregon Supreme Court

16 Brown v. SAIF continuing SAIF petitioned the Supreme Court for review and the court accepted. Briefing is complete. Arguments are scheduled for May The issues are: Whether the notice of acceptance determines the scope of a compensable injury What SAIF must prove when denying a combined condition: whether the accepted strain ceased to be the major contributing cause of the combined condition or whether the injury-incident has ceased to be the major contributing cause

17 SAIF responses to Brown v. SAIF Adjuster training on combined conditions Participated in advisory meetings with Workers Compensation Division on rulemaking Develop evidence while processing claim When accepting a combined condition, focus on the injury as a whole, including the acute accepted condition When denying an accepted combined condition, develop evidence that the injury is consistent with the accepted condition

18 Brown v. SAIF examples SAIF has continued to process claims under its understanding of the law, but is making allowances for current case law. New administrative rules from WCD Requires rating of impairment for conditions not accepted but resulting directly from the work injury in an initial injury claim Examples

19 SAIF v. Carlos-Macias: Off hand, I d say you re perfectly healthy, but just to be sure, I m ordering a bunch of tests.

20 SAIF v. Carlos-Macias This was SAIF s appeal of a Board order finding diagnostics compensable in the setting of a current condition denial of the worker s medical treatment. Decided the same day as Brown. The court decided the diagnostics were not dependent on the accepted condition and are compensable if necessary to ferret out the scope of the injury.

21 SAIF v. Carlos-Macias SAIF petitioned for Supreme Court review. The Court abated its review pending the outcome of Brown.

22 SAIF v. Carlos-Macias responses SAIF is paying for more diagnostic medical services. SAIF paid for many diagnostics anyway, but on close calls, the decisions are coming down for payment. Other medical services are determined on a case-by-case basis. Still needs to be: Reasonable and necessary Prescribed by the attending physician If it requires MCO precertification, this is still required

23 Firefighter presumption A rebuttable presumption that cardiovascular or lung conditions and certain cancers are caused by firefighting Difficult to rebut when the cause is not known

24 Firefighter cases Estacada Rural Fire Dist. #69 v. Hull: Not all conditions are presumed related. Heart condition caused by mental stress is a mental disorder and the presumption does not apply. SAIF v. Thompson: The presumption may be rebutted. The court agreed that SAIF rebutted the presumption when the only medical evidence said that the firefighter s off-work heart attack was not work related. Court rejected claimant s argument that SAIF s evidence attacked the presumption.

25 Firefighter cases Cancer cases The Board held in several cases that SAIF did not rebut the presumption of compensability when there was evidence of some association between the cancer and this group of workers. Leonard C. Damian, II: Cancer is presumed work-related. SAIF has subsequently accepted a number of firefighter cancer cases based on the doctors opinions that they cannot rule out firefighting as a substantial cause of the cancer.

26 Legislative activity after Schleiss and Brown Oregon Self-Insured Association and Associated Oregon Industries submitted a bill to correct the courts interpretations. SB 649 SAIF supports the bill.

27 SAIF CORPORATION April 24, 2015