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Booth v. Tektronix Inc.12/19/1991
SUPREME COURT OF OREGON
No. S36388
1991.OR.40027 ; 312 Or. 463; 823 P.2d 402
December 19, 1991
IN THE MATTER OF THE COMPENSATION OF LOIS BOOTH, CLAIMANT. LOIS BOOTH, PETITIONER ON REVIEW,
v.
TEKTRONIX, INC., RESPONDENT ON REVIEW
On review from the Court of Appeals. WCB No. 84-07174; CA No. A50290.
J. Randolph Pickett, P.C., Portland, filed the petition and argued the cause for petitioner on review.
Barbara A. Brainard, of Stoel Rives Boley Jones & Grey, Portland, argued the cause for respondent on review.
Kathryn H. Clarke, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
Karen O'Kasey and Janet M. Schroer, of Schwabe, Williamson & Wyatt, Portland, filed a brief on behalf of amici curiae Attorneys for Oregon Association of Workers' Compensation Defense Counsel, Associated Oregon Industries, and Oregon Association of Defense Counsel.
Peterson, Chief Justice, and Carson,3 Jones,4 Gillette, Van Hoomissen, Fadeley, and Unis, Justices. Unis, J., concurred in part and dissented in part and filed an opinion in which Fadeley, J., joined.
Carson
CARSON, C.J.
The issues we address in this workers' compensation case arose as the result of claimant's objection to the introduction of evidence obtained by her employer from pre-hearing communications with claimant's treating physicians without prior notice to claimant. The first issue is whether the physician-patient privilege applies to proceedings before the Workers' Compensation Board (the Board) and, if it does apply, whether claimant waived the privilege. The second issue is whether the Board's interpretation of its rules, which allows these pre-hearing communications, was an erroneous interpretation of law. The Court of Appeals affirmed the Board's order without opinion. Booth v. Tektronix, 97 Or App 431, 776 P2d 884 (1989). We affirm the decision of the Court of Appeals.
FACTS
Lois Booth (claimant) started working for Tektronix (employer) as an "assembler" on February 14, 1966. She later obtained positions with employer as a quality control inspector and then as a "calibrator." On October 24, 1983, claimant injured her mid-back and right rib cage while working. In November, claimant's treating physician diagnosed this injury as a pulled muscle or ligament. Claimant filed a claim for a disabling injury which first was accepted and then later denied by employer on the ground that claimant's pain was unrelated to the injury that had occurred at work.
Following the denial in June 1984, another physician examined claimant. At this time, in addition to the rib cage pain, claimant was experiencing pain that radiated down her back. This latter pain eventually was diagnosed as being due to a herniated disc of the spine at the thoracic (chest) level. Upon this physician's request, employer reopened claimant's claim and later rescinded its denial of the claim. In November 1985, she was awarded 25 percent unscheduled permanent partial disability due to the mid-back injury.
Following surgery to correct the herniated disc and alcohol injections to treat her continuing pain after surgery, claimant continued to suffer low-back pain which radiated down her legs. Employer had denied responsibility for claimant's low-back problems in May 1985.
After an April 1987 hearing, the referee aff
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