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Wantowski v. Crown Cork & Seal8/8/2001
nsistent with the Supreme Court's opinion in Walker and our opinion in January and constituted legal error. Consequently, we reverse and remand for the Board to apply the proper test to determine whether claimant has proven a compensable aggravation claim under ORS 656.273(1).
Employer raises the issue of whether there were any objective findings to support an actual worsening of claimant's compensable condition. The Board found none. Although the Board's order addressed why it discounted the MRI and range of motion test results, it failed to explain why the results of the x-ray and CT scan, straight leg test, knee-jerk test and claimant's documented numbness in his right toe and foot did not constitute objective findings under ORS 656.005(19). Consequently, we are unable to adequately review the Board's conclusion that no objective evidence supported claimant's aggravation claim. Iles v. Fred Meyer, Inc., 173 Or App 254, __ P3d __ (2001). On remand, if the Board makes a similar finding, it needs to provide a sufficient explanation why evidence that in other contexts constitutes objective findings does not satisfy the requirements of ORS 656.005(19) in this instance.
Reversed and remanded for reconsideration.
LIPSCOMB, pro tempore, concurring.
The result we reach today is legally correct, and therefore I concur. However, the process, I submit, needs some adjustment.
The record indicates that claimant needs a surgical fusion. The record further indicates that he has been unable to work until he gets the surgery he needs. A notice of claim for aggravation was filed June 28, 1998. The employer's denial in this case was issued on September 23, 1998. The administrative law judge (ALJ) issued an order on April 1, 1999. His subsequent order on reconsideration is dated June 10, 1999. The Board, in turn, reviewed the decision of the ALJ and issued its order on review on November 4, 1999. We now reverse the Board's order on review, and remand for reconsideration and a new determination by the Board.
One of the underlying public policy justifications for our workers' compensation system was to provide for a prompt determination of claims as an alternative to "long and costly litigation." See ORS 656.012(b). It has already taken more than three years to get to this juncture, however, and claimant has yet to receive a final answer on his claim. There is no reason that the review process for our workers' compensation system cannot function better than this, particularly where, as here, the issues are relatively simple and straightforward.
That review process necessarily involves multiple institutions and several stages, and this court is only one part of the entire system of review. However, much of the delay between, and within, those several stages could be, and should be, eliminated wherever it may appear.
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