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In re Compensation of Klutsenbeker11/13/2002
Argued and submitted October 12, 2001.
Reversed and remanded for reconsideration of denial of claim to expand employer's acceptance of claimant's 1986 claim.
Claimant requested that employer expand the scope of two claim acceptances, each relating to a separate employment-related back injury. Employer denied the requests. An administrative law judge ALJ and then the Workers' Compensation Board (board) affirmed. Claimant seeks judicial review. We affirm the denial of one request and, on the other denial, we reverse and remand for reconsideration.
On April 16, 1997, claimant experienced back pain while at work. He made a claim for workers' compensation benefits. Medical evidence established that the pain resulted from a strain, herniated discs, and degenerative spine disease. Employer accepted the claim insofar as it involved the strain but denied the compensability of the degenerative spine disease and disc herniations. Claimant then filed requests that employer expand its acceptance of two earlier accepted claims so as to include those denied conditions. Claimant maintained that employer's acceptance of a claim stemming from a 1985 work injury encompassed degenerative spine disease and that an acceptance of a "low back condition" resulting from a 1986 work injury encompassed disc herniations. Claimant, in other words, argued that, to the extent his 1997 condition resulted from degenerative spine disease and disc herniations, the 1997 causes were already accepted as part of the earlier acceptances. We deal with each earlier acceptance in turn.
THE 1985 CLAIM
On August 1, 1985, claimant hurt his back while bending and pulling at work. His physician diagnosed lumbosacral strain and sciatica, but when conservative treatment did not lead to improvement, a follow-up examination revealed a large herniated disk at L4-5. After an additional period of conservative treatment, claimant was released to work. Litigation regarding compensability and responsibility for this injury resulted in an order issued by an ALJ (the prior ALJ) in August 1987 compelling claimant's then-insurer to accept his "low back condition, including herniated disc." At that time, no law required an employer to make a specific "Notice of Acceptance." Claimant now argues that employer, in following the prior ALJ's mandate to accept the claim, necessarily accepted the claim as articulated by the prior ALJ: "low back condition, including herniated disc." According to claimant, because that phrase states that the condition included a herniated disc, it must imply that the condition consisted of more than just the herniated disc; it must also have included degenerative spine disease. Further, claimant argues that, under the rule announced in Georgia-Pacific v. Piwowar, 305 Or 494, 501, 753 P2d 948 (1988), employer is bound by the language of the acceptance, and language accepting a symptom or condition necessarily also accepts any underlying condition that is a cause of the symptom or condition--here, degenerative disc disease. Finally, claimant argues that a medical opinion obtained in 1998, based on review of a 1985 CT scan, confirms that, at the time of the 1985 claim, claimant already suffered from degenerative spine disease.
Like the ALJ and the board, we find claimant's arguments unpersuasive. The scope of an acceptance is a matter of fact; we will affirm the board's resolution of that matter if it is supported by substantial evidence. SAIF v. Dobbs, 172 Or App 446, 451, 19 P3d 932, adh'd to on recons, 173 Or App 599, 23 P3d 987 (2001); Freightliner Corp. v. Christensen, 163 Or App 191, 194, 986 P2d 1263 (1999). Where there is no written acceptance, "determining the scope of a
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