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Westfall v. Rust International11/5/1992
imant's lawyer was one that a reasonable lawyer would know was not well grounded in fact, or that a reasonable lawyer would know was not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law. Claimant's lawyer contends specifically that his argument is one that was warranted by a reasonable argument for the extension or modification of existing law. We begin our inquiry by summarizing the arguments made, and the facts and law relied on, by claimant's lawyer in his brief submitted to the Court of Appeals in Westfall I.
In January 1986, claimant suffered a low back strain during the course of his employment. He immediately sought and received treatment from a physician. Employer accepted the claim as a non-disabling injury . In July 1986, the treating physician declared that claimant was medically stationary without permanent impairment. Claimant requested continued treatment on the ground that his back continued to bother him, but employer denied that request.
Between July 1987 and December 1987, claimant sought and received treatment for additional symptoms of
back pain. In December 1987, employer denied his claim for that treatment. Medical evidence was submitted to a referee by experts on both sides; claimant's experts attributed claimant's symptoms to the earlier compensable injury , while employer's experts attributed them to a congenital condition. In April 1988, the referee found that claimant had suffered no intervening injury that could have contributed to his additional symptoms and that claimant's testimony was credible. He also concluded that the issue whether the later symptoms were related to the compensable injury was "not a complicated case." The referee set aside the denial, and employer appealed to the Board.
Pursuant to its authority under ORS 656.295, the Board reversed the referee's decision. Under the heading "CONCLUSIONS OF LAW," the Board stated that the case "present a complex medical question," that expert medical testimony therefore was relevant, and that the weight of such testimony, including evidence that claimant did not seek medical treatment between July 1986 and July 1987 and evidence that claimant had a pre-existing condition disposing him to back strain, supported a denial of his claim.
In the brief supporting his petition for judicial review pursuant to ORS 656.298, claimant's lawyer presented the following questions:
"1. Is the issue whether an injured worker's low back strain has continued to produce symptoms over a period of time without intervening injury , a 'complex medical question' under the facts of this case?
"2. When the credible lay and expert testimony in a workers' compensation case is found by a Referee not to present a complex medical question, does the law compel the Board to reverse the Referee and reinstate a denial of medical care in an accepted claim because two members of the Workers' Compensation Board do not understand the facts as well as the Referee did?"
As his only assignment of error, claimant's lawyer asserted:
"The Workers' Compensation Board erred in holding that Claimant's history of continuing symptoms while employed moving furniture for Rust International presented a 'complex medical question' which precluded a finding of compensability, based upon that history, as a matter of law."
In the argument portion of the brief, claimant's lawyer pointed out that the Board had based its reversal of the referee's decision on its Conclusion that the question of causation of claimant's back condition was a "com
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