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Roy v. McCormack Pacific Co.2/28/2001
Judicial review from Workers' Compensation Board.
On respondents' petition for reconsideration filed January 10, 2001; and on petitioner's response and cross-petition for reconsideration filed January 24, 2001. Opinion filed December 27, 2000. 171 Or App 526, ___ P3d ___.
On SAIF's petition, reconsideration allowed; opinion adhered to as modified. On claimant's petition, reconsideration allowed; opinion adhered to.
SAIF petitions for reconsideration of our opinion in this workers' compensation case, Roy v. McCormack Pacific Co., 171 Or App 526, ___ P3d ___ (2000). Claimant also cross-petitions for reconsideration. We allow reconsideration on both petitions, modify our opinion, and adhere to our previous disposition.
Claimant sought judicial review of an order of the Workers' Compensation Board upholding SAIF's denial of compensation for claimant's current condition and consequential injury. SAIF had originally accepted claimant's condition consisting of a left knee strain and contusion and a tear of the medial meniscus. Several weeks later, claimant suffered a new injury to the same knee, an injury of which SAIF became aware through a report from claimant's treating physician. As a result of that information, SAIF issued a denial of compensability for the new injury and for claimant's post-injury condition without first closing the accepted claim. Ultimately, the Board upheld the denial. On review, we reversed the Board's ruling and remanded for reconsideration, reasoning that there is no statutory authority for the denial of a consequential injury claim unless the underlying, accepted claim is also closed. We observed, "we cannot discern from the record before us what effect if any, SAIF's failure to close the accepted claim had on the payment of compensation for the accepted condition." Roy, 171 Or App at 535.
In its petition for reconsideration, SAIF argues that the record shows that it issued a notice of closure of the accepted claim four calendar days and two business days after it issued the denial. Relying on our holding in Chaffee v. Nolt, 94 Or App 83, 764 P2d 600 (1988), for the first time on reconsideration, SAIF argues that there was no erroneous failure to close the accepted claim in light of the proximity of its closure to the issuance of its denial and the fact that the accepted claim had been closed before the Board upheld the denial. SAIF did not rely on Chaffee until this petition for reconsideration as a justification for the fact that its closure did not occur before the denial. Our initial opinion did not discuss whether the accepted claim had been closed before the Board's order upholding SAIF's denial. To the extent that our original opinion suggests that it had not, it is modified accordingly.
The question then becomes whether, under Chaffee, SAIF is entitled to have the Board's order upholding its denial affirmed. In Chaffee, the claimant sought review of an order of the Board finding that the claimant's compensable back injury was medically stationary without permanent disability at the time that the employer issued its notice of closure. We affirmed the Board's order, writing only to address a procedural issue raised by the claimant. Three days before the employer issued its notice of closure, it sent the claimant a letter informing him that it was denying "any psychological condition as not related to your condition." At the hearing, employer's counsel stated that the letter was intended as a denial of future benefits for the back condition. Because the denial was in effect a prospective denial of an accepted condition, we held it to be procedurally improper. However, we also held:
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