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Tommy V. Arms v. Tommy V. Arms3/13/1991
COURT OF APPEALS OF OREGON
CA No. A64255
1991.OR.41603 ; 807 P.2d 331; 106 Or. App. 343
March 13, 1991
IN THE MATTER OF THE COMPENSATION OF TOMMY V. ARMS, CLAIMANT. GEORGIA-PACIFIC CORPORATION, PETITIONER,
v.
TOMMY V. ARMS, RESPONDENT
Judicial Review from Workers' Compensation Board. WCB Nos. 88-03948, 88-07597.
Jerry K. Brown, McMinnville, argued the cause for petitioner. With him on the brief was Fish & Peterson, P.C., McMinnville.
James L. Edmunson, Eugene, argued the cause and filed the brief for respondent.
Warren, Presiding Judge, and Riggs and Edmonds, Judges. Riggs, J., dissenting.
Edmonds
Employer seeks review of an order of the Workers' Compensation Board awarding claimant a penalty and attorney fees for an unreasonable denial. ORS 656.262(10); 656.382(1). We reverse.
In December, 1980, claimant strained his back while working as a logger for employer. His claim was accepted, and he was eventually awarded 30 percent unscheduled permanent partial disability. In September, 1987, he began working for Black Brothers Logging. On January 27, 1988, he left work early and went to the hospital and was examined by Dr. Mackey. The emergency room records noted "c/o lumbar-sacral pain radiate to L. hip x 2 weeks. Logging today (CAT skinner) Hx of back operation." Mackey referred claimant to Dr. Gallo, a neurosurgeon. Two days later, he returned to the emergency room and was treated by Dr. Kaib, who noted that claimant had previously visited the emergency room with "an acute exacerbation after driving a aterpillar tractor."
Claimant saw Gallo on February 2, 1988. Her first report indicates that claimant had injured his back at work two weeks earlier. Claimant filed an aggravation claim with employer. On the basis of reports from Gallo and the emergency room physicians, employer denied responsibility for claimant's medical treatment and disability. However, in a March 29, 1988, letter to claimant's attorney, Gallo said:
"Apparently when I took my initial history on Mr. Tommy Arms, I misunderstood his history regarding his most recent exacerbation of back pain. I have spoken with him
recently and we have sorted through my mistake. * * * Apparently I misunderstood him to say that he reinjured his back while at work. This was not the case. He was at home on a Sunday and was assisting a relative in transplanting some fruit trees. * * * This mistake is purely my own and I do not feel that the patient misled me on the initial consultation."
After that letter was forwarded to employer, it continued to deny the claim. In addition to the emergency room reports, it had a report from Dr. Zivin dated June 16, 1988, that said:
"It is quite clear from the original emergency contacts that the patient told the physician at that time that the circumstances revolved about his work with Black Brothers Logging Company."
Also, it had information that claimant's son-in-law held a management position at Black Brothers Logging and had been instrumental in getting claimant hired.
At a hearing in July, 1988, the referee set aside employer's denial but did not award a penalty or attorney fees. On review, the Board affirmed the referee except that it awarded a penalty and attorney fees against employer for its failure to rescind its denial after receiving Gallo's March 29 letter. It found:
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