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Smith-Sanders v. Smith-Sanders9/9/1992
COURT OF APPEALS OF OREGON
CA No. A69500
1992.OR.40907 ; 115 Or. App. 159; 836 P.2d 1359
Decided: September 9, 1992.
IN THE MATTER OF THE COMPENSATION OF BETTY J. SMITH-SANDERS, CLAIMANT. MEIER & FRANK CO. AND MAY DEPARTMENT STORES COMPANY, PETITIONERS,
v.
BETTY J. SMITH-SANDERS, RESPONDENT
Judicial Review from Workers' Compensation Board. No. 89-18180.
Jerald P. Keene, Portland, argued the cause for petitioners. With him on the brief was Roberts, Reinisch, MacKenzie, Healey & Wilson, P.C., Portland.
Glen H. Downs, Portland, argued the cause for respondent. With him on the brief were J. Michael Casey and Doblie & Associates, Portland.
Richardson, Presiding Judge, and Deits and Durham, Judges.
Deits
Employer seeks review of an order by the Workers' Compensation Board holding it responsible for medical expenses associated with claimant's non-compensable injury and assessing penalties and attorney fees. We reverse on the penalties and attorney fees. Otherwise, we affirm.
The Board accepted the referee's findings. Claimant suffered a compensable back injury in June, 1988. She had returned to her job by June, 1989, working part-time, when she allegedly injured her right knee, requiring surgery. Claimant sought authorization from employer for the surgery in July, 1989. Employer gave oral authorization to both claimant and her surgeon's office, and the surgery was performed on August 4. On December 12, 1989, employer denied compensability of the right knee condition and the surgery. The Board agreed with the referee's Conclusion that the injury itself was not compensable. It also affirmed the referee's holding that employer was liable for the costs of the surgery but for different reasons:
"We agree with the Referee that the underlying knee condition is not compensable. The Referee found the knee surgery compensable as diagnostic surgery because the employer had authorized the surgery. The Referee was apparently applying estoppel to the employer. We do not agree that the surgery is compensable as diagonstic [ sic ] surgery, but we agree that the employer is estopped from denying the surgery."
Employer contends that, because it never accepted the claim in writing and did not authorize the surgery, the Board's holding that it was estopped from denying responsibility for medical expenses associated with the surgery was in error.
We first conclude that there is substantial evidence in the record to support the Board's finding that employer orally authorized the surgery. Claimant testified that she spoke with a person named "Linda Ross," representing employer,
who authorized the surgery. Also, records at Portland Orthopedic Clinic contain a file note stating:
"LINDA ROSS AT MAY COMPANY AUTHORIZED ARTHROSCOPY WITH MENISCECTOMY OF THE RIGHT KNEE ON 07-25-89, FOR BETTY SMITHSANDERS."
Employer argues that, even if it did authorize the surgery, the Board erred in holding it responsible for expenses associated with the surgery. It points out that, under the Board's rules, an acceptance must be in writing. See ORS 656.262(6). Employer asserts that it did not authorize the surgery in writing and, in fact, issued a written denial in December. It argues that, because the statutes and rules provide the exclusive procedural scheme governing workers' compensation and because there is nothing in the sta
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