 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
In re Compensation of Myers12/17/2003
at were not and could not have been litigated at the hearing before him, such as the compensability of conditions that developed after the hearing. See id. at 139. Further, it is true, as the board observed, that Mills's order requiring Liberty NW to accept claimant's low back strain did not preclude litigation on the compensability of or responsibility for claimant's current condition, a fact that would not have existed at the time of the hearing before Mills. What Mills's unchallenged order precludes, however, is relitigation of his determination that responsibility for claimant's low back condition shifted from SAIF to Liberty NW when claimant suffered a new injury involving the same condition in September 1997. Although Mills ordered Liberty NW to accept only a low back strain, he also found 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." He held, accordingly, that responsibility for claimant's low back condition shifted to Liberty NW pursuant to ORS 656.308. Absent another new injury, under ORS 656.308(1), responsibility for claimant's low back condition remains with Liberty NW. Barrett Business Services v. Morrow, 164 Or App 628, 635, 993 P2d 179 (1999).
Citing recent case law, Liberty NW asserts that, because Mills found that the 1997 injury had not changed claimant's underlying disc condition and because he limited Liberty NW's acceptance to "low back strain," the shifting of responsibility to Liberty NW was limited to claimant's low back strain. See, e.g., Multifoods Specialty Distribution v. McAtee, 333 Or 629, 43 P3d 1101 (2002); Barrett Business Services. We need not decide, however, whether the cited cases suggest a "partitioned" approach to the shifting of liability under ORS 656.308, because it is clear that Mills's order required a shifting to Liberty NW of the entire claim, including the pre-existing disc condition. It is true that, in finding that claimant had suffered a new injury in September 1997, Mills defined the scope of the compensable claim as a low back strain that combined temporarily with claimant's pre-existing disc pathology. But Mills did not limit the shifting of responsibility to Liberty NW to the low back strain. He said, "Under [ORS 656.308], SAIF remains responsible for claimant's low back condition unless a new injury occurred with the more recent employer." (Emphasis added.) Having found that claimant had experienced a new injury in the form of a strain while working for Liberty NW's insured, Mills held that responsibility for claimant's entire low back condition, including his pre-existing disc pathology, shifted to Liberty NW. That is the only plausible reading of Mills's order.
Because the board did not consider the preclusive effect of Mills's order on its determination of responsibility for claimant's current condition, we remand the claim to the board for reconsideration.
Reversed and remanded for reconsideration.
Page 1 2 3 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|