Simi v. LTI Inc. - Lynden Inc.

535

Argued and submitted October 16, affirmed December 26, 2019

In the Matter of the Compensation of

Randy G. Simi, Claimant.

Randy G. SIMI,

Petitioner,

v.

LTI INC. - LYNDEN INC.,

Respondent.

Workers’ Compensation Board

1702216; A168738

456 P3d 673

Claimant seeks review of an order of the Workers’ Compensation Board set-

ting aside an order of an administrative law judge directing employer to reopen

an accepted claim for “right rotator cuff tear” for the processing of claimant’s cur-

rent shoulder conditions of infraspinatus and supraspinatus tears, which claim-

ant contended are new or omitted conditions under ORS 656.262(7). Claimant

contends that, because employer conceded at the hearing that the conditions are

compensable as encompassed within the original claim, employer is required

under ORS 656.262(7)(c) to reopen the claim and reprocess the conditions.

Held: ORS 656.262(7)(c) imposes an obligation to reopen a claim for processing

only for conditions that are found to be compensable as new or omitted medical

conditions (or aggravations or combined conditions) and therefore have not previ-

ously been processed, not for conditions that are only alleged to be new or omitted

but that are determined to have been encompassed in an original acceptance and

previously processed. The board therefore did not err in concluding that the orig-

inal claim for right rotator cuff tear did not need to be reopened for processing of

the infraspinatus and supraspinatus tears.

Affirmed.

Ronald A. Fontana argued the cause and filed the briefs

for petitioner.

Rebecca A. Watkins argued the cause for respondent.

Also on the brief was Sather, Byerly & Holloway, LLP.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

Powers, Judge.

DeVORE, J.

Affirmed.

Lagesen, P. J., concurring in part, dissenting in part.

536 Simi v. LTI Inc. - Lynden Inc.

DeVORE, J.

This case is one in a series of claims relating to

claimant’s efforts to obtain workers’ compensation bene-

fits for a shoulder condition diagnosed as “right shoulder

full thickness tear of the supraspinatus tendon and tear-

ing of the infraspinatus tendon.” Claimant seeks review

of an order of the Workers’ Compensation Board setting

aside an order of an administrative law judge (ALJ) that

had directed employer to reopen an accepted claim for

“right rotator cuff tear” for the processing of claimant’s cur-

rent shoulder conditions, which claimant asserts are new

or omitted. Claimant also challenges the board’s reversal

of the ALJ’s assessment of a penalty under ORS 656.262

(11)(a). We review the board’s order for substantial evidence

and errors of law. ORS 183.482(8)(a), (c). We conclude that

the board did not err and affirm.

The facts are undisputed, but the procedural his-

tory of the claims is a bit complex. Claimant filed a claim for

a right shoulder injury in 2010. Employer accepted the claim

as a right rotator cuff tear, claimant had surgical repairs,

and the claim closed in 2011 with an award for permanent

impairment.

In 2013 and 2014, claimant suffered work-related

injuries and, in 2015, he had a second surgery to repair a

new rotator cuff tear. The orthopedic surgeon diagnosed

“recurrent right full thickness rotator cuff tear.” In 2016,

claimant sought to establish the compensability of his cur-

rent shoulder conditions—infraspinatus and supraspinatus

tears—either as new/omitted conditions or as an aggrava-

tion of the 2010 injury.1 Employer denied both claims as not

compensable.2 Subsequently, the doctor who had performed

claimant’s 2010 surgery opined that “ ‘rotator cuff’ encom-

passed a reference to the supraspinatus and infraspinatus

1

Claimant had also previously sought compensation for the conditions as an

occupational disease. See Simi v. LTI Inc. - Lynden Inc., 300 Or App 258, 453 P3d

587 (2019) (remanding for reconsideration order rejecting occupational disease

claim because of claimant’s failure to establish a contribution from “general work

activities”)

2

Employer’s denial stated: “Based on the medical evidence currently avail-

able, it does not appear the 04/06/2010 injury materially caused [the claimed con-

ditions] or that it otherwise arose out of and in the course of your employment.”

Cite as 301 Or App 535 (2019) 537

tendons,” that his diagnoses were meant to encompass those

conditions, and that the previously accepted “right rotator

cuff” tear “adequately encompassed the new or omitted

conditions.”

At a hearing, employer acknowledged that the

described conditions were more specific terms for the rotator

cuff tear that had been accepted in 2011. Employer did not,

however, rescind or amend its denial.

In an order of March 24, 2017, an ALJ upheld

employer’s denial of the aggravation claim, but set aside that

portion of employer ‘s denial based on compensability, rea-

soning that the denied conditions were encompassed within

the accepted rotator cuff tear claim.3 They were compensa-

ble insofar as they had been previously accepted. The ALJ

awarded an attorney fee under ORS 656.386(1). Despite

claimant’s request, however, the ALJ did not remand the

claim to employer for acceptance and further processing,

and employer did not reopen the claim for processing. Both

parties appealed the ALJ’s order to the board.

While the appeals to the board were pending on the

order of March 24, 2017, claimant initiated this separate

proceeding, seeking an order requiring employer to reopen

the 2010 claim for acceptance and processing of the infraspi-

natus and supraspinatus tears.

Before a hearing occurred on claimant’s hearing

request, the board, in an order of October 2017, largely

upheld the ALJ’s March 2017 order, making rulings favor-

able to each party. The board upheld the ALJ’s rejection of

employer’s compensability denial and also awarded claim-

ant a penalty and attorney fees under ORS 656.262(11)(a)

for unreasonable claims processing. However, on the evi-

dence, the board agreed with employer that the claimed

conditions were not new or omitted and were encompassed

3

The ALJ pointed out the inconsistency of both denying “compensability”

and acknowledging that the conditions were encompassed within the original

acceptance. The ALJ explained that an omitted medical condition claim may be

denied, even if the claimed conditions are compensable, if the claimed conditions

are neither “new” nor “omitted.” But the ALJ noted that employer’s denial had not

been made on that basis, but rather because the conditions were not compensable.

The ALJ concluded that the denial was not “legally supportable.”

538 Simi v. LTI Inc. - Lynden Inc.

within employer’s acceptance of the claim for right rotator

cuff tear. And, the board upheld employer’s denial of claim-

ant’s aggravation claim for the claimed conditions.

Despite having overturned employer ‘s denial of

the compensability of the claimed conditions, the board’s

October 2017 order did not remand the claim for further

processing. Employer had contended that setting aside the

denial could “create the illusion that [the] employer must

process the supraspinatus and infraspinatus tears,” but the

board did not explicitly address whether additional process-

ing was required. Instead, the board simply observed that

the ALJ’s March 2017 order had not remanded the claim to

employer for further processing.

We affirmed the board’s October 2017 order with-

out opinion. 295 Or App 143, 432 P3d 399 (2018). Thus, the

board’s October 2017 order finally determined that the infra-

spinatus and supraspinatus tears are encompassed within

employer’s acceptance of a right rotator cuff tear and did

not constitute new or omitted conditions or an aggravation

of the right rotator cuff tear (i.e., the 2010 injury was not a

material contributing cause of any worsening of the right

rotator cuff tear).

Returning to the matter before us, as we have noted,

after the ALJ’s March 2017 order, claimant had requested a

hearing seeking an order requiring employer to reopen the

earlier claim for processing of the infraspinatus and supra-

spinatus tears. Claimant relied on ORS 656.262(7)(c), which

provides that “[i]f a condition is found compensable after

claim closure, the insurer or self-insured employer shall

reopen the claim for processing regarding that condition.”

The ALJ agreed with claimant, determining that employer

was required to reopen the claim, because employer’s com-

pensability denial had been overturned. The ALJ deter-

mined that the overturning of the compensability denial

also triggered an obligation under OAR 436-060-0140(7) to

issue a new notice of acceptance. The ALJ reasoned that

the March 2017 and October 2017 orders had not addressed

the processing obligations resulting from the overturn-

ing of employer’s compensability denial. The ALJ ordered

employer to reopen the claim and also awarded claimant

Cite as 301 Or App 535 (2019) 539

a penalty and attorney fees. Employer appealed the ALJ’s

order to the board.

In the current order on judicial review, the board

reversed the ALJ. Although the board noted that its October

2017 order had not remanded the claim for processing, the

board chose not to rely on that prior order as having deter-

mined that no reopening of the claim was required. Rather,

the board addressed the merits of employer’s contention that

no reopening or further processing was required. The board

explained that ORS 656.262(7) applies to require a reopen-

ing and processing only when a new or omitted condition is

found compensable after claim closure. The board reasoned

that, because the infraspinatus and supraspinatus tears

were encompassed within the 2010 rotator cuff tear, they

were not new or omitted conditions and therefore had not

been “found compensable after claim closure,” so as to trig-

ger an obligation for claim reopening and processing under

ORS 656.262(7)(c). The board cited our opinion in Akins v.

SAIF, 286 Or App 70, 74, 398 P3d 463, rev den, 362 Or 94

(2107), in which we stated that when a condition is deter-

mined to have been encompassed within a prior acceptance,

there is no obligation for the employer to “reaccept (and

reprocess) a condition that, as a factual matter, already has

been accepted.” The board reversed the ALJ’s order requir-

ing a reopening of the claim and awarding a penalty and

attorney fee.

Board member Lanning dissented, reasoning that

the rejection of employer’s compensability denial resulted in

the conditions having been “found compensable after claim

closure,” requiring a reopening and processing under ORS

656.262(7)(c). Claimant follows the dissenting board mem-

ber’s line of reasoning, contending that, employer’s com-

pensability denial of the infraspinatus and supraspinatus

tears having been set aside, and claimant’s claim for “new

or omitted” conditions having been “found compensable

after claim closure,” the statutes are clear that employer

was required to process the claim pursuant to ORS 656.262

(7)(c). Employer responds that the obligation to reopen

and process a new or omitted medical condition claim only

applies to new or omitted medical conditions, not to “encom-

passed” conditions.

540 Simi v. LTI Inc. - Lynden Inc.

The case presents a question of statutory construc-

tion, and we set forth the relevant statutory text. New or

omitted medical condition claims are governed by ORS

656.267 and ORS 656.262(6) and (7). Under ORS 656.267,4

a claimant is required to initiate a new or omitted medical

condition claim pursuant to the procedures set forth in that

section, which then requires that the claim will be processed

under ORS 656.262. In turn, ORS 656.262(6)(d) provides:

“An injured worker who believes that a condition has

been incorrectly omitted from a notice of acceptance, or that

the notice is otherwise deficient, first must communicate in

writing to the insurer or self-insured employer the worker’s

objections to the notice pursuant to ORS 656.267. The

insurer or self-insured employer has 60 days from receipt

of the communication from the worker to revise the notice

or to make other written clarification in response.”

Thus, pursuant to ORS 656.262(6)(d), if, after claim accep-

tance or closure, a claimant believes that an acceptance

should include a new condition related to the accepted claim

or an omitted condition, the claimant is required to notify

the employer pursuant to ORS 656.267. The claim is then

required to be processed pursuant to ORS 656.262(7). The

subsection reads, as relevant:

“(7)(a) After claim acceptance, written notice of accep-

tance or denial of claims for aggravation or new medical

or omitted condition claims properly initiated pursuant

to ORS 656.267 shall be furnished to the claimant by the

insurer or self-insured employer within 60 days after the

insurer or self-insured employer receives written notice of

such claims. * * *

4

As relevant, ORS 656.267 provides:

“(1) To initiate omitted medical condition claims under ORS 656.262

(6)(d) or new medical condition claims under this section, the worker must

clearly request formal written acceptance of a new medical condition or an

omitted medical condition from the insurer or self-insured employer. * * *

Notwithstanding any other provision of this chapter, the worker may initiate

a new medical or omitted condition claim at any time.

“(2)(a) Claims properly initiated for new medical conditions and omitted

medical conditions related to an initially accepted claim shall be processed

pursuant to ORS 656.262.

“(b) If an insurer or self-insured employer denies a claim for a new med-

ical or omitted medical condition, the claimant may request a hearing on the

denial pursuant to ORS 656.283.”

Cite as 301 Or App 535 (2019) 541

“(b) Once a worker’s claim has been accepted, the

insurer or self-insured employer must issue a written

denial to the worker when the accepted injury is no longer

the major contributing cause of the worker’s combined con-

dition before the claim may be closed.

“(c) When an insurer or self-insured employer deter-

mines that the claim qualifies for claim closure, the insurer

or self-insured employer shall issue at claim closure an

updated notice of acceptance that specifies which condi-

tions are compensable. The procedures specified in subsec-

tion (6)(d) of this section apply to this notice. Any objection

to the updated notice or appeal of denied conditions shall

not delay claim closure pursuant to ORS 656.268. If a con-

dition is found compensable after claim closure, the insurer

or self-insured employer shall reopen the claim for processing

regarding that condition.”

(Emphasis added.) As it relates to new/omitted medical con-

dition claims, we understand ORS 656.262(7)(a) to pertain

to the processing of new or omitted condition claims initi-

ated pursuant to ORS 656.267 and ORS 656.262(6)(d). In

turn, ORS 656.262(7)(c) requires that, when an insurer or

self-insured employer determines that a claim for a new

or omitted condition (or an aggravation or combined condi-

tion) qualifies for closure, the insurer is required to issue

an updated notice of acceptance that specifies which condi-

tions are compensable and, if a new/omitted medical condi-

tion claim (or an aggravation or combined condition claim) is

determined to be compensable after closure, the claim must

be reopened for processing of that condition. The claim is

required to be reopened because the new/omitted medical

condition has not previously been processed.

Claimant and the dissent focus on the italicized

last sentence of ORS 656.262(7)(c): “If a condition is found

compensable after claim closure, the insurer or self-insured

employer shall reopen the claim for processing regarding

that condition.” In their view, that text unambiguously

requires a reopening any time a condition is determined

to be compensable after claim closure, without regard

to whether the condition is, in fact, new or omitted (or an

aggravation or combined condition). When, claimant con-

tends, the board rejects an employer’s compensability denial

542 Simi v. LTI Inc. - Lynden Inc.

of conditions alleged to be new or omitted, the new/omitted

medical conditions have been “found compensable.” But, in

light of its statutory context, we understand the last sen-

tence of ORS 656.262(7)(c) to impose an obligation to reopen

a claim for processing only for conditions that are in fact

determined to be compensable as new or omitted conditions

(or aggravations or combined conditions) after closure, i.e.,

that are found to be compensable as new or omitted med-

ical conditions (or aggravations or combined conditions)

and therefore have not previously been processed, not for

conditions that are only alleged to be new or omitted but

that are determined to have been encompassed in an orig-

inal acceptance and previously processed. We offered that

interpretation in Providence Health System v. Walker, 252

Or App 489, 502, 289 P3d 256 (2012), rev den, 353 Or 867

(2013) where we said that the phrase “found compensable”

in ORS 656.262(7)(c) signals a legislative intent in that any

post-closure finding that an omitted condition is compensa-

ble after closure triggers a processing obligation. Claimant’s

and the dissent’s interpretation would mean that if, at any

time after closure, a condition that is claimed to be new or

omitted (or an aggravation or combined condition) is deter-

mined to be encompassed within an original acceptance, the

claim must nonetheless be reopened for processing, even if

the condition is not new or omitted and has already been

correctly processed with the original claim. That would be a

pointless act that would undermine the finality of claim clo-

sure and the policy of the workers’ compensation system “to

reduce litigation.” See ORS 656.012(2)(b); Murphy v. Nilsen,

19 Or App 292, 300 n 3, 527 P2d 736 (1974) (the court should

not presume that the legislature intended that a useless act

should be done).

Claimant here sought to have the infraspinatus

and supraspinatus tears accepted as new or omitted con-

ditions pursuant to ORS 656.267 and ORS 656.262(6)(d).

Employer denied the compensability of the conditions as

not related to the 2010 injury. Although the board’s October

2017 order overturned employer’s compensability denial, it

did not do so on the ground that the conditions were new or

omitted. Rather, the board determined that the conditions

were not new or omitted but that employer’s denial based

Cite as 301 Or App 535 (2019) 543

on compensability was not appropriate in light of employ-

er’s concession that the conditions were encompassed within

the original acceptance.5 The closure of that claim was not

challenged and has become final. A condition that is encom-

passed within an earlier acceptance is not “new or omit-

ted” and has already been accepted and processed. Thus, a

claimed condition that an employer acknowledges is encom-

passed within an earlier claim is not subject to reprocessing,

as would be required if the condition was actually new or

omitted under ORS 656.262(7) and ORS 656.267.

As we recently held in Akins, ORS 656.267 is

intended to permit workers to obtain acceptance of con-

ditions that, as a factual matter, are not included within

the scope of the insurer’s acceptance. “Nothing in the text,

context, and legislative history of [ORS 656.267] supports

claimant’s argument that the legislature intended to require

an insurer to reaccept (and reprocess) a condition that, as a

factual matter, already has been accepted.” 286 Or App at

74. Because, as the board explained, the 2010 right rota-

tor cuff claim had been closed and claimant’s aggravation

claim had been rejected, there was no other basis on which

to reopen the claim.

In sum, the board did not err in rejecting claim-

ant’s request to reopen the claim. Because the claim was not

required to be reopened, the board did not err in overturn-

ing the ALJ’s award of a penalty and related attorney fees.

Affirmed.

LAGESEN, P. J., concurring in part, dissenting in

part.

About five years after claim closure, claimant

requested employer to accept the new or omitted conditions

of right shoulder full thickness tear of the supraspinatus

tendon and tearing of the infraspinatus tendon, among other

conditions. Employer denied the request on the grounds that

the 2010 workplace injury was not the material cause of any

of the conditions and that the conditions did not arise out

5

As noted, claimant has obtained an insurer-assessed attorney fee as a

result of his success in overturning employer’s denial, as well as a penalty under

ORS 656.262(11), and those awards are not challenged.

544 Simi v. LTI Inc. - Lynden Inc.

of and in the course of claimant’s employment. On review,

employer changed its view of things, admitting that the

conditions were compensable and taking the position that,

not only were they compensable, the conditions were encom-

passed within its original acceptance of the 2010 injury. The

administrative law judge (ALJ) agreed both that the con-

ditions were compensable and that they were encompassed

within employer’s original acceptance. For that reason,

the ALJ set aside the employer’s compensability denials,

explaining:

“The employer does not dispute that the supraspinatus

and infraspinatus tears were omitted medical conditions.

The opinions of Drs. Teal, Stanley, Butters, and Swanson

establish that the tears * * * were encompassed within the

rotator cuff tear and that acceptance of ‘rotator cuff tear’

reasonably apprised claimant and his medical providers of

the nature of the compensable condition. An omitted med-

ical condition claim may be denied, even if the claimed

conditions are compensable, if the claimed conditions are

neither ‘new’ nor ‘omitted.’ However, the employer’s denial

did not deny the tears on the basis that they were not omit-

ted, nor did the employer assert that the supraspinatus

and infraspinatus tears need not be accepted pursuant to

ORS 656.267(1). Instead, the July 1, 2016 denial denied

these tears on the grounds of compensability (viz., the 2010

injury was not the material cause). Such a denial was dia-

metrically opposed to the employer’s position that the tears

were encompassed within the accepted rotator cuff tear

condition.

“In addition, because the supraspinatus and infraspi-

natus tears were encompassed within the accepted rotator

cuff tear condition, claimant need not independently estab-

lish the compensability of these tears. Because the July 1,

2016 denial of the suprapinatus and infraspinatus tears

was not legally supportable, it is set aside.”

(Citations omitted.)

The question before us is whether this set of events

triggered employer’s obligation to reopen claimant’s claim

for further processing regarding the supraspinatus and

infraspinatus tear conditions under the last sentence of

ORS 656.262(7)(c). That sentence states: “If a condition

is found compensable after claim closure, the insurer or

Cite as 301 Or App 535 (2019) 545

self-insured employer shall reopen the claim for processing

regarding that condition.” ORS 656.262(7)(c). By its plain

terms, the sentence mandates reopening for further pro-

cessing whenever “a condition is found compensable after

claim closure.” We recognized as much in Providence Health

System v. Walker, 252 Or App 489, 289 P3d 256 (2012),

rev den, 353 Or 867 (2013). There, we construed that sen-

tence broadly to require reopening and processing upon

any post-closure finding of compensability by an insurer or

employer, ALJ, board, or court, regardless of whether that

finding might be subject to being overturned on appeal. Id. at

502.

Here, it is hard to contend that claimant’s supraspi-

natus and infraspinatus tears were not “found compensable

after claim closure” in the ordinary sense of those words.

Employer denied that the conditions were compensable and

then an ALJ found that they were compensable. All of that

happened after claim closure. Under the plain terms of ORS

656.262(7)(c) and our construction of it in Walker, that find-

ing triggered an obligation to reopen claimant’s claim for

processing related to those conditions.

It is true that, in addition to finding that the two

tears were compensable, the ALJ found further that the tears

were encompassed within a condition previously accepted by

employer. And it is true that, had employer merely denied

claimant’s request to accept those tear conditions on the

ground that they were encompassed and, thus, had already

been found to be compensable prior to closure, then employ-

er’s obligation under ORS 656.262(7)(c) would not have been

triggered. See Akins v. SAIF, 286 Or App 70, 73-74, 398 P3d

463, rev den, 362 Or 94 (2017). But, in such a case, it is diffi-

cult to say that the condition at issue was “found compensa-

ble after claim closure” when there is never any dispute that

the condition is encompassed within the initial acceptance,

and, thus, is a condition determined to be compensable at or

before claim closure, not afterward. In contrast, where, as

here, an employer, following claim closure, disputes the com-

pensability of a condition and that condition is subsequently

found to be compensable, the condition is necessarily—by

virtue of the dispute—one that is “found compensable after

546 Simi v. LTI Inc. - Lynden Inc.

claim closure,” even if it is deemed in the long run to be

encompassed within the original accepted condition.

In reaching a contrary conclusion, the majority

opinion asserts that ORS 656.262(7)(c) requires reopen-

ing and processing of a condition found compensable after

claim closure “because the new/omitted medical condition

claim has not previously been processed.” 301 Or App at

546. Having reached that conclusion about the purpose of

ORS 656.262(7)(c), the majority opinion concludes further

that the provision does not apply where, as here, a condi-

tion is determined to be encompassed within the originally

accepted condition, and, therefore, is not a new or omitted

condition (or aggravated or combined condition). This is

because, the majority opinion asserts, such a condition “has

already been correctly processed with the original claim.”

301 Or App at 542.

There are several problems with that analysis. The

first is that it is difficult to square with the text of the last

sentence of ORS 656.262(7)(c). That text does not qualify the

obligation to reopen and process, upon a post-closure find-

ing of compensability, on whether a condition ultimately is

determined to be a new or omitted condition (or aggravated

or combined condition). The words simply require a post-

closure finding of compensability to trigger the reopening

and processing obligation.

The second weakness is that the analysis is based

on the assertion that the purpose of ORS 656.262(7)(c) is to

require the processing of previously unprocessed conditions.

But it is not clear from where the majority opinion divines that

purpose. To be sure, part of the reason for requiring reopen-

ing and reprocessing may be to process previously unpro-

cessed conditions. But it seems just as likely that another

aspect of the legislative purpose in requiring reopening and

processing is to account for preclosure errors in the process-

ing of a condition found to be compensable after closure as a

result of an employer’s denial of compensability. Certainly,

the fact that an employer denies that a condition is compen-

sable gives rise to questions as to whether the condition was

properly processed as an encompassed condition, if the condi-

tion is later determined to be an encompassed one.

Cite as 301 Or App 535 (2019) 547

The final problem with the analysis is that it does

not account for the fact, in this case, that the ALJ appears

to have viewed the tear conditions as omitted conditions,

and specifically noted that employer did not dispute that

they were omitted conditions. In other words, it seems that

the ALJ found the tears at issue to be omitted conditions

in view of the fact that employer denied compensability—

although the ALJ then relied on the determination that the

conditions were encompassed to conclude that claimant did

not have to prove independently that the conditions were

compensable.

One other point is worth mentioning. The approach

taken by the majority opinion appears to conflict with our

interpretation of ORS 656.262(7)(c) in Fleetwood Homes v.

VanWechel, 164 Or App 637, 993 P2d 171 (1999). In that

case, we concluded that the unambiguous terms of ORS

656.262(7)(c) required the employer to reopen and process

a claim with respect to two conditions that had been found

to be compensable after claim closure. Id. at 641-42. We did

so even though the Department of Consumer and Business

Services had denied the claimant’s request that the claim

be reopened for processing, determining that further pro-

cessing was not required because “the new conditions had

been addressed at the time of [claim] closure.” Id. at 639.

Although our opinion in Fleetwood Homes is opaque in

its description of the facts, the board later construed it to

mean that, where, as here, a condition is found to be com-

pensable after claim closure, ORS 656.262(7)(c) requires

the insurer or employer to reopen the claim and process

it with respect to that condition, even if the condition ulti-

mately is deemed to be encompassed within the original

acceptance:

“We find that the holding in Vanwechel applies here.

Whether or not [the condition at issue] is considered as

encompassed by the initial acceptance, it is a new condition

that was not included in the initial acceptance. By setting

aside the insurer’s denial, the ALJ effectively ordered the

insurer to accept [the condition at issue]. Thus, because the

insurer was ordered to accept [the condition] after claim

closure, we conclude that it is required to reopen the claim

pursuant to ORS 656.262(7)(c).”

548 Simi v. LTI Inc. - Lynden Inc.

In the Matter of Munson, 52 Van Natta 741 (2000). Perhaps a

case can be made that these authorities are distinguishable

and should not control the outcome in this case. The major-

ity opinion, however, has not made that case.

In view of the foregoing, the board erred when it

determined that ORS 656.262(7)(c) did not require employer

to reopen claimant’s claim to process the supraspinatus and

infraspinatus tear conditions. I would therefore reverse the

board’s order on that point.

That leaves the question of whether claimant is

entitled to a penalty and fees under ORS 656.262(11) or ORS

656.382 based on employer’s failure to reopen the claim to

process the tear conditions that the ALJ found to be com-

pensable. I would conclude that he is not. In its appeal to the

board from the ALJ’s order finding the tears compensable,

employer raised the issue of whether further processing is

required. Although the board did not squarely resolve the

issue, its order suggests that employer was not required to

reopen the claim to process the tear conditions:

“The employer also argues that the ALJ’s order ‘could

create the illusion that [the] employer must process the

supraspinatus and infraspinatus tears.’ We note, however,

that in setting aside the employer’s denial, the ALJ’s order

did not remand the claim to the employer for further pro-

cessing according to law; rather, the order provided that,

‘[t]hose conditions remain encompassed with[in] the accepted

rotator cuff tear claim.’ ”

(Brackets in original.) In my view, the board’s response to

employer’s argument as a matter of law gave employer a

“legitimate doubt” as to its obligation to reopen and pro-

cess under ORS 656.262(7)(c). See Snyder v. SAIF, 287 Or

App 361, 366-67, 402 P3d 743 (2017) (articulating “legiti-

mate doubt” standard for penalty and fees under ORS

656.262(11)); Walker, 252 Or App at 505 (stating standard

under ORS 656.382). Thus, I would affirm the board’s order

insofar as it rejects claimant’s request for a penalty and

fees.