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Saif Corp. v. Leland5/19/1999
ot be successful in relieving it. Claimant requested a contested case hearing to review the decision.
On May 21, 1997, an ALJ conducted a telephone hearing, as a result of which he set aside the MRU order and ordered SAIF to reimburse claimant for the surgery and to pay claimant $2,100 as a reasonable attorney fee. The ALJ adopted the findings of fact from the MRU's order but also found that Bert's postoperative report recorded that, during the surgery, "a large bulging L5-S1 disk was identified" and removed and that the report indicated that large synovial cysts were pushing into the neural foramina bilaterally. The ALJ further found that Rohrer had used only radiographic data to determine that the surgery at the L5-S1 level was not necessary or appropriate. Although Bert's postoperative report was before the MRU, the report was not discussed in its decision.
Employer contests much in the ALJ's proposed order; however, those disputed findings and Conclusions do not appear in the Director's final order, which is the proper subject of our review. Accordingly, we do not address that part of employer's argument.
In his final order, the Director agreed that there was substantial evidence before the MRU to find that some of claimant's pain was caused by degenerative disk disease. However, the Director found that there was not substantial evidence to support the MRU's finding that the surgery was inappropriate. The Director set aside the MRU order because the order found that the surgery was inappropriate based solely on medical evidence rendered before claimant's actual surgery. Because he modified the order on the ground that it was not supported by substantial evidence, the Director's order did not reach claimant's error of law argument that the MRU failed to observe the requirement to give more weight to the opinions of the treating physician when medical opinion is divided unless persuasive reasons obtain for not doing so. The MRU stated that rule but, according to the ALJ, failed to state any reasons, "persuasive, or otherwise, for finding Dr. Bert's rationale less persuasive than the rationale of the doctors in opposition to the surgery."
Employer assigns two errors to the Director's final order that amount to the same argument, namely, that the Director failed to apply substantial evidence review pursuant to ORS 656.327(2). Employer requests that we remand the case to the Director to conduct a proper review of the MRU unless we concur that, under Younger v. City of Portland, 305 Or 346, 752 P2d 262 (1988), this particular case is so at odds with the agency's decision that the court can infer that the agency "had misunderstood or misapplied its scope of review." Id. at 359. If so, employer asks that we conduct our own substantial evidence review of the MRU and reverse the Director.
We review employer's contention that the Director misunderstood or misapplied the substantial evidence limitation for errors of law. ORS 183.482(8)(a). In O'Neil v. National Union Fire, 152 Or App 497, 500-501, 954 P2d 847, rev den 327 Or 317 (1998), we summarized the process by which a medical treatment dispute is reviewed:
"The first stage consists of a review of the disputed treatment by the Medical Review Unit (MRU) of the Workers' Compensation Division. Its review is not required to * * * follow a contested case or other plenary quasi-judicial format. The MRU gathers and reviews 'medical information and records,' and its efforts are to culminate in a 'documentary record sufficient for judicial review' and an 'administrative order' ruling on the appropriateness of the treatment. The second stage, which may be initiated after the Conclusion of the first upon th
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