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In re Compensation of Myers12/17/2003
Argued and submitted June 12, 2003.
Reversed and remanded for reconsideration.
SAIF Corporation seeks review of an order of the Workers' Compensation Board in which the board upheld Liberty Northwest Insurance Corporation's (Liberty NW) denial of responsibility for claimant's current low back condition, set aside SAIF's responsibility denial of claimant's current low back condition, and remanded the claim to SAIF for processing.
The issue on review is which of two insurers is responsible, pursuant to ORS 656.308(1), for claimant's compensable current low back condition requiring surgery. We agree with SAIF and claimant, who is a respondent on review, that a final order of Administrative Law Judge (ALJ) Mills, assigning responsibility to Liberty NW for claimant's low back condition, precludes Liberty NW from denying responsibility for claimant's low back condition. We accordingly reverse the board's order and remand for reconsideration in light of that determination.
The facts are largely undisputed. Claimant has had multiple work-related back injuries. In January 1984, claimant strained his back while working for SAIF's insured, Roberts Motor Co. (Roberts). SAIF accepted the claim as nondisabling. Claimant again injured his back while working for Roberts in December 1984. SAIF accepted a claim for that injury as well and, in 1988, paid for surgery for a herniated disc arising out of the December 1984 incident.
Claimant's back problems continued after the surgery, but he managed with only intermittent treatment until September 25, 1997, when he again injured his back while working for Associated Fruit Company (Associated Fruit), Liberty NW's insured. Medical reports indicated that claimant's symptoms were similar to those that he had experienced for many years and that claimant's disc pathology had not changed as a result of the 1997 injury. Doctors opined that he had experienced a lumbar strain as a result of the 1997 incident but that the strain had resolved and claimant was again suffering from chronic low back pain relating to his pre-existing disc pathology.
Both Liberty NW and SAIF denied claims for treatment, including possible surgery, relating to the September 1997 incident. In its denials of March 24, 1998, March 25, 1998, and April 29, 1998, SAIF denied responsibility for claimant's request for surgical treatment of a disc herniation. In letters dated January 6, 1998, and May 4, 1998, Liberty NW also denied responsibility, explaining that " he information further indicates that your pre-existing low back condition is the major contributing cause of your current condition and need for treatment" and that "your employment with Associated Fruit Company is not the major contributing factor of your condition of herniated nucleus pulposus, L5-S1, with S1 radiculopathy." Claimant requested a hearing.
Mills described the issues under consideration as "the compensability of and responsibility for claimant's low back condition following an incident occurring * * * in September of 1997." He found that claimant had sustained a lumbar strain as a result of the September 1997 incident that had temporarily combined with his pre-existing low back condition, but that the strain had resolved and the incident had not caused a change in claimant's ongoing spinal pathology. Mills found, nonetheless, that claimant's condition after the 1997 incident "was essentially the same as the condition which was accepted by SAIF arising from the 1984 injury. Accordingly, ORS 656.308 applies. Under that statute, SAIF remains responsible for claimant's low back condition unless a new injury occurred with the more recent employer."
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