Workers’ compensation system is strictly a creature of statute and provides a sui generis scheme of rights and obligations. Haret v. SAIF, 72 Or App 668, 673–74 (1985) (In Banc); see Hinkle v. State Industrial Acc. Comm, 163 Or 395, 398 (1940) (overruled on other grounds). “The act is a complete statement of the rights of workers to compensation for injuries covered thereby.” Haret, supra. If the statutes do not provide for an insurer’s actions, then the insurer may not act in that manner. The term “encompassed” is contained in ORS 656.267(1), which allows an employer to accept a claimed medical condition by any manner that reasonably apprises claimant and medical providers of the nature of the compensable conditions. However, that allowance is limited to the particular claim made at that time. Rose v. SAIF, 200 Or App 654, 662-63 (2005). And it requires a notice of acceptance be issued. For example, if a worker makes a claim for a sprain/strain, an insurer could potentially modify its acceptance to include just the sprain, if medical evidence supports that as an appropriate label to apprise claimant and providers of the nature of the acceptance. Rose forbids the employer from taking the position that, because the employer already accepted a strain, a later claim for a sprain is encompassed within the earlier accepted strain. Rose is clear on this. So, why am I seeing continued positions by employers (and decisions) that the currently claimed, and differently named, condition is already encompassed within an earlier acceptance? This is often accompanied with medical reports that the earlier acceptance “reasonably apprises” medical providers of the nature of the acceptance, or a statement that a muscle tear is simply a worse type of muscle strain already accepted, or the condition claimed is unnecessary to include because doctors understand the nature of the injury. Nowhere in the statutes is that the standard of compensability. I wonder whether the legal standard of compensability is still unclear to the bench and bar. ORS 656.262(6)(b)(A) requires an insurer to specify what conditions are compensable. ORS 656.262(6)(b)(F) requires insurers to modify a notice of acceptance from time to time as information changes. Nava v. SAIF, 333 Or App 196 (2024). ORS 656.262(6)(d), (7)(a) require an insurer to clarify a notice of acceptance when requested. If a worker asks for clarification, the insurer must provide a response that allows the worker to know whether benefits will be provided. Various benefits statutes required employers to provide those benefits. The Court of Appeals held that once a condition is accepted, if asked, an insurer does not need to accept it again. Akins v. SAIF, 286 Or App 70 (2017). The court did not hold that if a condition is encompassed, similar, unnecessary to add, etc., the employer does not need to accept it, provide benefits, or clarify the acceptance. The legal standard of compensability for new/omitted medical condition claims is clear with the court apply the compensability standard of ORS 656.005(7)(a). SAIF v. Williams, 304 Or App 233, 242 (2020). The legal standard is whether the work accident is a material contributing cause of the need for treatment or resulting disability. “Existence” of the condition is probably “established by medical evidence supported by objective findings.” ORS 656.005(7)(a); see ORS 656.802(2)(d). However, what seems to be unclear is the employer’s defense that it has already accepted the claimed condition. While claimant bears the burden to prove compensability of the condition, ORS 656.266(1), the burden to prove the condition is already accepted would fall on the employer as the party with that position. Harris v. SAIF, 292 Or 683 (1982) (burden of proof is on the proponent of a fact or position). The only test annunciated so far is a condition already has been accepted. Akins, supra. As there is no statute that provides encompassed conditions do not have to be accepted, such proof would not meet the test the condition is already accepted. JULENE QUINN is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Club level. Her firm is Quinn & Heus LLC, 4504 S. Corbett, Portland, OR 97239. She can be reached at [email protected] or 503-575-1253. Comp Corner There Is No Such Thing as Encompassed Conditions by Julene Quinn, OTLA Guardian 51 Trial Lawyer | Fall 2024
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