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In re Compensation of Dedera5/25/2005
Argued and submitted November 15, 2004.
Before Haselton, Presiding Judge, and Schuman and Ortega, Judges.
Reversed and remanded for reconsideration.
Claimant seeks review of a Workers' Compensation Board (board) order denying claimant temporary disability benefits. He contends that the board erred in construing ORS 656.262(4)(g) to invalidate his attending physician's authorization of temporary disability once another physician assumed the role of attending physician. We review for errors of law. ORS 183.482(8). Because the board's interpretation of ORS 656.262(4)(g) was in error, we reverse.
The pertinent facts are undisputed. Claimant sustained a compensable low-back injury in November of 1997 while working for employer as a carpenter. The claim for that condition was closed in May of 1998 and ultimately claimant received an award of five percent unscheduled permanent disability.
On February 26, 1999, claimant sought treatment from Dr. Zirkle, an orthopedic surgeon, for constant pain in his low back and for pain and numbness in his left leg. Zirkle diagnosed nerve root irritation from a probable disc herniation, prescribed medication, and recommended that claimant see a neurosurgeon. Claimant returned to Zirkle in August of that year, reporting that he had been "shopping around from doctor to doctor" but had been unable to see a neurosurgeon because his claim was closed. Zirkle again examined claimant and determined that he should be considered for surgical intervention. On August 18, 1999, in order to help claimant get his claim reopened, Zirkle filled out a "Notice of Claim for Aggravation" authorizing "time loss" (that is, temporary disability) from "2-26-99 -- present."
Zirkle then referred claimant to Dr. Cindrich, a neurosurgeon, who saw claimant on August 31, 1999. Cindrich ordered an EMG and, on review of that, an MRI. He made no attempt to authorize temporary disability on seeing claimant and, indeed, nothing in the record appears to have triggered a need to do so at that point.
On September 1, 1999, the insurer wrote to Zirkle requesting confirmation that he was claimant's current attending physician. A member of Zirkle's staff wrote back that he was not claimant's attending physician.
The insurer began paying interim compensation on September 2, 1999. Those payments ended as of November 15, 1999, when the insurer issued an aggravation denial, and claimant requested a hearing. Then, in February of 2000, claimant requested that the insurer accept the "new condition" of "L4 radiculopathy secondary to L3-4 disc herniation." Although the insurer partially denied that claim as well, the board set aside the denial in March of 2001. Insurer then accepted claimant's new condition but did not pay any additional temporary disability on reopening the claim, stating that there was no express authorization for such benefits as of September 1, 1999, when Zirkle's office had indicated that he was not claimant's attending physician. On May 1, 2001, claimant saw Cindrich again, and Cindrich retroactively authorized temporary disability from September 1, 1999, forward, indicating that claimant was "totally incapacitated." Because ORS 656.262(4)(g) allows an attending physician to retroactively authorize temporary disability only back to 14 days before the date of authorization, insurer paid benefits only from April 17, 2001 forward.
Claimant requested a hearing, seeking an award of temporary disability from August 4, 1999 (14 days before Zirkle's original authorization) to April 17, 2001 (the date the insurer commenced disability payments). An administrative law judge denied claimant compensation for
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