# Simi v. LTI Inc. - Lynden Inc.

> Court of Appeals of Oregon · December 26, 2019 · 301 Or. App. 535

URL: https://www.frixlaw.com/law-library/cases/10599867

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** December 26, 2019
- **Citations:** 301 Or. App. 535; 456 P.3d 673
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** DeVore
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10599867. Public record. Not legal advice.