Rodriguez v. Keystone RV - Thor Industries

201

Argued and submitted September 30, 2019, affirmed on petition and cross-

petition December 30, 2020

In the Matter of the Compensation of

Jorge A. Rodriguez, Claimant.

Jorge A. RODRIGUEZ,

Petitioner

Cross-Respondent,

v.

KEYSTONE RV - THOR INDUSTRIES,

Respondent

Cross-Petitioner.

Workers’ Compensation Board

1700887, 1604801; A167474

480 P3d 303

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

upholding the determination of an administrative law judge (ALJ) that claim-

ant was entitled to substantive temporary disability benefits, but reversing the

ALJ’s assessment of a penalty under ORS 656.262(11)(a) and employer-paid

attorney fees under ORS 656.382, determining that employer had not unrea-

sonably resisted or delayed paying claimant temporary disability benefits. The

self-insured employer contends on cross-petition that the board erred in con-

cluding that an authorization of temporary disability benefits could be inferred

from the medical record and in upholding the determination of the Appellate

Review Unit that claimant was entitled to substantive temporary disability ben-

efits. Held: As to entitlement to substantive temporary disability benefits, the

board did not err in concluding that, despite the absence of an explicit medical

authorization of benefits or time off work, the attending physician’s authorization

could be inferred from the medical record. On the question of a penalty, the board

did not err in determining that, although an inference could be made from the

entire medical record that the attending physician had authorized time loss, in

the absence of an explicit work restriction, the opposite inference—that there had

not been a medical authorization—was also reasonable, and employer therefore

had a legitimate doubt as to its liability for temporary disability benefits. Thus,

the Court of Appeals upheld the board’s determination that no penalty was due.

Affirmed on petition and cross-petition.

Julene M. Quinn argued the cause and filed the briefs for

petitioner-cross-respondent.

Rebecca A. Watkins argued the cause for respondent-

cross-petitioner. Also on the briefs was Sather, Byerly &

Holloway, LLP.

202 Rodriguez v. Keystone RV - Thor Industries

Before Ortega, Presiding Judge, and Shorr, Judge, and

James, Judge.

ORTEGA, P. J.

Affirmed on petition and cross-petition.

Cite as 308 Or App 201 (2020) 203

ORTEGA, P. J.

Claimant seeks review of an order of the Workers’

Compensation Board upholding the determination of an

administrative law judge (ALJ) that claimant was entitled

to substantive temporary disability benefits but reversing

the ALJ’s assessment of a penalty under ORS 656.262(11)(a)

and employer-paid attorney fees under ORS 656.382, deter-

mining that employer had not unreasonably resisted or

delayed paying claimant temporary disability benefits.

Keystone RV – Thor Industries, the self-insured employer,

contends on cross-petition that the board erred in conclud-

ing that an authorization of temporary disability benefits

could be inferred from the medical record and in upholding

the determination of the Appellate Review Unit (ARU) that

claimant was entitled to substantive temporary disability

benefits.1 We review the board’s order for errors of law and

substantial evidence, ORS 656.298; ORS 183.482(7), (8), and

conclude that the board did not err. We therefore affirm on

the petition and cross-petition.

The underlying facts are undisputed. Claimant

suffered a compensable work injury in August 2013, which

employer accepted as a right knee strain and medial and

lateral meniscus tears. In December 2013, Dr. Bell, an

orthopedic surgeon and claimant’s attending physician,

performed a right knee arthroscopy and meniscectomy. Bell

took claimant off work for a period of time after the surgery.

Employer paid temporary disability benefits and closed the

claim in May 2014 with an award of five percent permanent

impairment.

In August 2014, employer reopened the claim for an

aggravation of the right knee injury, and Bell again took

claimant off work. Employer paid temporary disability ben-

efits for the right knee through February 25, 2015, the date

1

“Procedural” temporary disability benefits are those benefits that are

statutorily mandated to be paid on an accepted claim while the claim is open.

They are distinct from “substantive” benefits that a claimant is awarded at claim

closure under ORS 656.210 and ORS 656.212, based on a preponderance of the

evidence in the entire record showing that the claimant was disabled due to a

compensable injury before becoming medically stationary. See Lebanon Plywood

v. Seiber, 113 Or App 651, 653-54, 833 P2d 1367 (1992) (describing “procedural”

and “substantive” temporary disability benefits).

204 Rodriguez v. Keystone RV - Thor Industries

on which Bell determined that claimant had become medi-

cally stationary.2

Shortly after employer reopened the right knee

claim, claimant began to experience symptoms in his left

knee. In October 2014, Bell diagnosed a medical meniscus

tear of the left knee and, on November 13, 2014, he per-

formed a left knee arthroscopy and partial meniscectomies.

The board found that claimant’s post-surgical discharge

instructions advised “ ‘no making important decisions for 24

hours, ambulate with assistance as tolerated, weight bear-

ing as tolerated,’ elevate the left leg above the heart, and

use cold therapy for 20 minutes every two hours (or contin-

uously if tolerated).” However, the doctor’s chart notes did

not explicitly authorize temporary disability benefits for the

left knee or state that claimant was restricted from work on

account of the left knee.

Employer denied a new/omitted medical condition

claim for the left knee and did not begin paying benefits

for temporary disability for that knee. However, claimant

continued to be off work for the right knee and to receive

procedural temporary disability benefits for the right knee

through February 25, 2015. As of that date, Bell declared

claimant “fit for full duty” with respect to both knees. The

right knee aggravation claim closed on March 3, 2015, with

a substantive award of temporary disability benefits from

June 9, 2014 to November 18, 2014.

Claimant’s left-knee claim continued in litigation.

Ultimately, in December 2015, an ALJ ordered employer to

accept the left-knee injury as a consequential condition, and

the board affirmed that order. In October 2016, claimant

requested a hearing, seeking procedural temporary dis-

ability benefits for the left knee condition, a penalty, and

attorney fees. On December 19, 2016, employer reopened

the claim, amended its notice of acceptance to include the

left knee meniscal tear condition, and reclosed the claim

with an award of permanent partial disability. The notice of

2

Claimant received procedural temporary disability benefits for the right

knee until February 25, 2015, but Bell determined that claimant’s right knee

was medically stationary as of November 18, 2014; therefore, claimant received

an overpayment of temporary disability benefits of approximately three months

for the right knee.

Cite as 308 Or App 201 (2020) 205

closure did not award additional temporary disability ben-

efits, however, stating that there had been no authorization

for temporary disability benefits for the left knee condition.

Claimant requested reconsideration.

On February 14, 2017, the ARU issued an order on

reconsideration of the notice of closure of the left knee claim,

awarding claimant substantive benefits at closure for tem-

porary disability from November 19, 2014 through February

25, 2015, the medically stationary date for the left knee. The

ARU noted that OAR 436-060-0020(4) (2016), an adminis-

trative rule of the Department of Consumer and Business

Services, allows an inference of authorization “from such

medical records as a surgery report or hospitalization record

that reasonably reflects an inability to work because of the

compensable claim, or from a medical report or chart note

generated at the time of, and indicating, the worker’s inabil-

ity to work.” On that basis, the ARU found that time loss

benefits had been authorized:

“[T]he temporary disability for this open period was

authorized beginning November 19, 2014, which is the first

date beyond what was authorized in the March 4, 2015,

Notice of Closure, and ending February 25, 2015, when the

worker was released to regular work and declared medi-

cally stationary[.]”

Claimant requested a hearing, seeking procedural

temporary disability benefits for the left knee up to the date

of closure, penalties, and attorney fees. Employer submitted

a cross-request for hearing, challenging the ARU’s award of

temporary disability benefits for the left knee.

The ALJ upheld the ARU’s award of substantive

benefits for temporary disability from the date of claimant’s

left-knee surgery to February 25, 2015, when Bell deter-

mined that claimant had become medically stationary. The

ALJ also determined, citing ORS 656.262(4)3 and Lederer

3

ORS 656.262(4) provides:

“Temporary disability compensation is not due and payable for any

period of time for which the insurer or self-insured employer has requested

from the worker’s attending physician or nurse practitioner authorized to

provide compensable medical services under ORS 656.245 verification of the

worker’s inability to work resulting from the claimed injury or disease and

the physician or nurse practitioner cannot verify the worker’s inability to

206 Rodriguez v. Keystone RV - Thor Industries

v. Viking Freight, Inc., 193 Or App 226, 234, 89 P3d 1199,

adh’d to as modified on recons, 195 Or App 94, 96 P3d 882

(2004), that employer should have inferred from the medi-

cal records the attending physician’s approval of claimant’s

entitlement to procedural temporary disability benefits

for the left knee. However, the board is not authorized to

require an insurer to make an overpayment. See Lebanon

Plywood v. Seiber, 113 Or App 651, 654, 833 P2d 1367 (1992)

(the board has no authority to require a payment of bene-

fits for procedural temporary disability that conflicts with

a substantive entitlement of benefits determined in a notice

of closure or order on reconsideration; rather, a penalty is

the appropriate consequence for an unreasonable failure to

pay those benefits). Because the claim had been closed with

a substantive award of benefits only through February 25,

2015, the ALJ determined that an award of procedural tem-

porary disability benefits through the December 19, 2016,

date of claim closure would exceed claimant’s substantive

award and would therefore result in an overpayment. Thus,

the ALJ did not award those additional benefits for proce-

dural temporary disability but instead assessed a penalty

under ORS 656.262(11)(a),4 for an unreasonable refusal to

pay procedural temporary disability benefits, and attorney

fees under ORS 656.382(1).5

Employer appealed the ALJ’s order to the board,

challenging the award of substantive temporary disability

work, unless the worker has been unable to receive treatment for reasons

beyond the worker’s control.”

4

ORS 656.262(11)(a) provides, in part:

“If the insurer or self-insured employer unreasonably delays or unreasonably

refuses to pay compensation, attorney fees or costs, or unreasonably delays

acceptance or denial of a claim, the insurer or self-insured employer shall be

liable for an additional amount up to 25 percent of the amounts then due plus

any attorney fees assessed under this section.”

5

ORS 656.382(1) provides:

“If an insurer or self-insured employer refuses to pay compensation, costs

or attorney fees due under an order of an Administrative Law Judge, the

board or the court, or otherwise unreasonably resists the payment of com-

pensation, costs or attorney fees, except as provided in ORS 656.385, the

employer or insurer shall pay to the attorney of the claimant a reasonable

attorney fee as provided in subsection (2) of this section. To the extent an

employer has caused the insurer to be charged such fees, such employer may

be charged with those fees.”

Cite as 308 Or App 201 (2020) 207

benefits and the assessment of a penalty and attorney fees.

The board reviewed the penalty question first. In its review

of the penalty issue, the board specifically found that, after

claimant’s surgery, Bell had not made an explicit authoriza-

tion of temporary disability or time off work:

“[C]ontemporaneous medical records do not establish that

Dr. Bell considered [claimant] to be unable to work due to

his left knee condition. * * * [C]onsidering the absence of

work restrictions from Dr. Bell resulting from claimant’s

left knee surgery, such a record supports a reasonable

inference that Dr. Bell did not intend to authorize claim-

ant to be off-work pertaining to his accepted left knee

condition.”

The board reversed the ALJ’s assessment of a penalty, rea-

soning that, in light of the absence of an explicit authori-

zation of temporary disability benefits or time off work by

claimant’s doctor, employer had a legitimate doubt as to

its liability for temporary disability benefits. See Brown v.

Argonaut Insurance Company, 93 Or App 588, 591, 763 P2d

408 (1988) (applying legitimate doubt standard).

Nonetheless, citing OAR 436-060-0020(4) (2016), the

board accepted the ARU’s finding that an authorization for

substantive temporary disability could be inferred from the

medical records which, the board found, “reasonably reflect

[claimant’s] inability to work.” Thus, the board rejected

employer’s challenge to the award of benefits for substantive

temporary disability as determined by the ARU.6

On judicial review, claimant asserts that the board

erred in setting aside the ALJ’s award of a penalty and

attorney fees. In its cross-petition, employer asserts that,

in the absence of authorization of temporary disability from

claimant’s doctor, the board erred in upholding the ARU’s

award of substantive temporary disability benefits.

6

The board rejected claimant’s contention that OAR 436-060-0020(4) (2016)

should be applied to allow an inference of authorization of procedural temporary

disability, interpreting the rule to apply only to determinations of substantive

temporary disability at the time of claim closure and therefore as not applicable

to determine whether claimant was entitled to procedural temporary disability.

See Lederer, 193 Or App at 234 (holding that OAR 436-060-0020(4) (2016) by

its terms, addresses processing obligations at the time of claim closure and not

whether authorization has been provided on an open claim).

208 Rodriguez v. Keystone RV - Thor Industries

We address first the issue raised in the cross-

petition as to whether there was medical authorization of

temporary disability benefits. ORS 656.262(4)(a) provides:

“The first installment of temporary disability compen-

sation shall be paid no later than the 14th day after the

subject employer has notice or knowledge of the claim and

the worker’s disability, if the attending physician or nurse

practitioner authorized to provide compensable medical

services under ORS 656.245 authorizes the payment of

temporary disability compensation.”

Under ORS 656.262(4)(g),

“[t]emporary disability compensation is not due and pay-

able pursuant to ORS 656.268 after the worker’s attend-

ing physician or nurse practitioner authorized to provide

compensable medical services under ORS 656.245 ceases

to authorize temporary disability or for any period of

time not authorized by the attending physician or nurse

practitioner.”

Thus, under ORS 656.262(4), payment of either procedural

or substantive temporary disability benefits must be autho-

rized by the attending physician or nurse practitioner.

Menasha Corp. v. Crawford, 332 Or 404, 412, 29 P3d 1129

(2001). In the absence of an explicit medical authorization

of benefits or time off work, a physician’s authorization may

be inferred from the medical record. OAR 436-060-0020(4)

(2016) provides:

“The insurer at claim closure, or the division at reconsid-

eration of the claim closure, may infer authorization from

such medical records as a surgery report or hospitalization

record that reasonably reflects an inability to work because

of the compensable claim, or from a medical report or chart

note generated at the time of, and indicating, the worker’s

inability to work.”

See Lederer, 193 Or App at 237 (authorization of temp dis-

ability benefits may be inferred from a medical record rea-

sonably understood to show the doctor’s approval excusing

the worker from work); see also Scott v. Liberty Northwest

Ins. Corp., 268 Or App 325, 330, 341 P3d 220 (2014) (obli-

gation to pay benefits is triggered “when an objectively rea-

sonable insurer or self-insured employer would understand

Cite as 308 Or App 201 (2020) 209

contemporaneous medical reports to signify approval excus-

ing the worker from work”). The board upheld the award

of benefits for substantive temporary disability, concluding

that the physician’s authorization for such benefits could be

inferred from the medical record. The board cited the left-

knee discharge instructions requiring claimant to “ambu-

late with assistance as tolerated, bear weight as tolerated,”

elevate the left leg above the heart, and “use cold therapy for

20 minutes every two hours (or continuously if tolerated).”

That evidence, along with Bell’s February 25, 2015, release

of claimant to “full duty,” led the board to conclude “that the

medical record reasonably reflects that claimant was unable

to work after the November 13, 2014 surgery.”

On judicial review, employer asserts that ORS

656.262(4) requires a physician’s authorization of time off

work and that it is clear from the board’s order that the

board made its own conclusion as to whether claimant was

disabled. A close reading of the board’s order persuades us

that, despite a less-than-precise analysis, the board under-

stood the correct standard and applied it. In determining

whether it could be inferred that Bell had authorized claim-

ant to be off work, the board considered the entire record of

Bell’s surgical treatment of claimant’s knees. Bell had pre-

viously authorized time loss when claimant had surgery on

his right knee. In the board’s view, that prior history, along

with the left-knee surgical discharge instructions requiring

claimant to keep his leg elevated and ice it for 20 minutes

every two hours, allowed an inference of authorization. As

we understand the board’s order, the board held that Bell’s

authorization of time loss could be inferred from the restric-

tions imposed on discharge. We conclude that that determi-

nation is supported by substantial evidence.

Despite its determination that authorization of time

off work could be inferred from the restrictions placed on

claimant following his left knee surgery, as noted, the board

also concluded that no penalty should be assessed, because

employer had a legitimate doubt as to its liability. Claimant

challenges that determination. The board explained that

the absence of an explicit work restriction by the attend-

ing physician allowed a reasonable inference that Bell had

210 Rodriguez v. Keystone RV - Thor Industries

not intended to authorize time loss and thereby supported

a legitimate doubt as to employer’s liability for tempo-

rary disability benefits. Thus, while the board inferred

from the entire medical record that Bell had authorized

time loss, as to the question of a penalty, the board recog-

nized that, in the absence of an explicit work restriction,

the opposite inference—that there had not been a medical

authorization—was also reasonable. We are persuaded that

that was a permissible interpretation of the medical record

and that the board’s determination is supported by substan-

tial evidence. See Providence Health System v. Walker, 252

Or App 489, 505, 289 P3d 256 (2012), rev den, 353 Or 867

(2013) (The question whether an insurer had a legitimate

doubt as to its liability is a factual determination that we

review for substantial evidence.). We therefore also affirm

the board’s determination that no penalty is owing.

Affirmed on petition and cross-petition.