Precision Castparts Corp - PCC Structurals v. Cramer

324

Argued and submitted June 24, 2021, affirmed June 15, 2022

In the Matter of the Compensation of

Melonie Cramer, Claimant.

PRECISION CASTPARTS CORP -

PCC STRUCTURALS,

Petitioner,

v.

Melonie CRAMER,

Respondent.

Workers’ Compensation Board

1806152, 1806099,

1805542, 1805499, 1805435;

A173643

514 P3d 514

Employer Precision Castparts Corp - PCC Structurals seeks judicial review

of an order of the Workers’ Compensation Board, contending that the board

erred in assessing a penalty under ORS 656.268(5), based on employer’s unrea-

sonable closure of claimant’s claim. Held: The Board did not err in determining

that claimant’s claim was closed prematurely because employer lacked sufficient

information on which to close claimant’s claim. The board also did not err in

assessing a penalty based on the premature closure, because employer unreason-

ably closed the claim based on the opinion of a physician who employer reason-

ably should have known was not claimant’s attending physician.

Affirmed.

Rebecca A. Watkins argued the cause for petitioner. Also

on the opening brief was Sather Byerly & Holloway LLP.

Also on the reply brief was SBH Legal.

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

respondent.

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

Powers, Judge.

SHORR, J.

Affirmed.

Cite as 320 Or App 324 (2022) 325

SHORR, J.

Employer Precision Castparts Corp - PCC Structurals

seeks judicial review of an order of the Workers’ Compensation

Board, contending that the board erred in assessing a pen-

alty under ORS 656.268(5)(f),1 based on employer’s unrea-

sonable closure of claimant’s claim. We conclude that the

board did not err in assessing the penalty and therefore

affirm.

We draw our summary of the facts from the board’s

order and from the record. Claimant suffered a compensa-

ble shoulder injury in October 2017. Among a list of pos-

sible medical providers, claimant chose to enroll in Kaiser

Permanente’s “Kaiser-On-The-Job” managed care orga-

nization (MCO) for treatment of her injury. In November

2017, Dr. Anderson, an occupational medicine special-

ist with Kaiser Permanente, began treating claimant,

and she completed a form designating him as her attend-

ing physician. Claimant saw Anderson several times.

Anderson ordered imaging, referred claimant for physi-

cal therapy, and outlined work restrictions. Employer ini-

tially denied the claim but ultimately accepted it in April

2018.

Claimant disliked Anderson and decided that she

did not want him to be her attending physician. Instead,

while the claim was in denied status, claimant returned

to her primary care physician, Dr. Constien, who treated

claimant over a six-month period, from December 2017

through June 2018. Constien recommended that claimant

receive additional physical therapy but could not authorize

it, because the MCO required that authorization for physi-

cal therapy be provided by a doctor in Kaiser Permanente’s

1

The statute, formerly numbered ORS 656.268(5)(d), was renumbered in

2015 to ORS 656.268(5)(f) but is substantively unchanged. Or Laws 2015, ch 144,

§ 1. Throughout this opinion, we cite the current version, which provides:

“If an insurer or self-insured employer has closed a claim or refused to

close a claim pursuant to this section, if the correctness of that notice of clo-

sure or refusal to close is at issue in a hearing on the claim and if a finding

is made at the hearing that the notice of closure or refusal to close was not

reasonable, a penalty shall be assessed against the insurer or self-insured

employer and paid to the worker in an amount equal to 25 percent of all com-

pensation determined to be then due the claimant.”

326 Precision Castparts Corp - PCC Structurals v. Cramer

occupational medicine department.2 Thus, against her wishes

and feeling that she had been manipulated into returning to

Anderson, claimant returned to Anderson for a single visit

on July 27, 2018, so that he could refer her to physical ther-

apy. As of that visit, Anderson was aware that claimant had

been treated for her injury by her primary care physician,

Constien, for the prior six months.

Anderson referred claimant for additional physical

therapy and a physiatry consultation. Claimant followed

through with those referrals. On August 17, 2018, Anderson

concurred in a letter from employer’s counsel summarizing

an August 8, 2018, telephone conversation in which Anderson

opined that claimant’s shoulder strain was medically sta-

tionary without permanent disability or work restrictions.

On August 27, 2018, claimant’s counsel informed employ-

er’s processing agent that she did not want to treat with

Anderson because of her experience with him and “did not

consider Dr. Anderson to be her attending physician and it

was not her intention that he become her attending physi-

cian when she saw him on July 27, 2018.”

Claimant continued to seek a new attending phy-

sician and asked to disenroll from the MCO so she could

seek treatment elsewhere and not with Anderson. When the

MCO declined, she requested resolution of the issue with the

MCO’s medical dispute resolution director.3 Although aware

of claimant’s dispute and her request to change attending

physicians, based on Anderson’s opinion that claimant was

medically stationary without any permanent impairment,

employer closed the claim on September 10, 2018, without

an award of permanent disability.

Having set forth the significant facts, we now set

forth some of the applicable law that gives context to those

2

During the period when the claim was denied, claimant was not restricted

to seeing physicians who were approved by the MCO; thus, she could see Constien

during that time. Orowheat-Bimbo Bakeries v. Vargas, 287 Or App 331, 335, 337,

401 P3d 1256 (2017) (requirement that the worker see only MCO-approved phy-

sicians applies only to accepted claims); ORS 656.245(4)(b)(D) (“If the claim is

denied, the worker may receive medical services after the date of denial from

sources other than the managed care organization until the denial is reversed.”).

3

The MCO ultimately facilitated claimant’s examination by a different

occupational medicine specialist, Dr. Kerfoot, who became claimant’s attending

physician.

Cite as 320 Or App 324 (2022) 327

facts. ORS 656.245(2)(a) provides that “[t]he worker may

choose the initial attending physician or nurse practitioner

and may subsequently change attending physician or nurse

practitioner two times without approval from the director.”

A claim may be closed when the worker is medically station-

ary and the insurer has “sufficient information” to determine

the worker’s disability, if any. ORS 656.268(1)(a) (providing

that a claim may be closed when “[t]he worker has become

medically stationary and there is sufficient information to

determine permanent disability”). Only the attending phy-

sician (or a physician to whom the attending physician has

referred the worker) may provide “sufficient information”

to close a claim, because only the attending physician may

address impairment and release the worker to regular or

modified work at closure. ORS 656.245(2)(b)(C).4 An “attend-

ing physician” is “a doctor who is primarily responsible for

the treatment of a worker’s compensable injury” and who,

among other things, meets certain licensing requirements.

ORS 656.005(12)(b).5 See also OAR 436-010-0210(1) (stating

that an attending physician is “primarily responsible for

the patient’s care, authorizes temporary disability, and pre-

scribes and monitors ancillary care and specialized care”).

Claimant requested that the Appellate Review Unit

(ARU) reconsider employer’s closure of her claim, contend-

ing, among other issues, that she did not have an attending

4

ORS 656.245(2)(b)(C) provides:

“Except as otherwise provided in this chapter, only a physician qualified

to serve as an attending physician under ORS 656.005(12)(b)(A) or (B)(i) who

is serving as the attending physician at the time of claim closure may make

findings regarding the worker’s impairment for the purpose of evaluating the

worker’s disability.”

See also OAR 436-030-0035(1)(a) (“In an initial injury claim, a worker is med-

ically stationary when the attending physician, authorized nurse practitioner,

or a preponderance of medical opinion declares that all accepted conditions and

direct medical sequelae of accepted conditions are either ‘medically stationary’

or ‘medically stable’ or when the provider uses other language meaning the same

thing.”); OAR 436-030-0035(5) (“The insurer may request that the attending

physician or authorized nurse practitioner concur with or comment on the clos-

ing examination when the attending physician or authorized nurse practitioner

arranges or refers the worker for a closing examination with another physician.”).

5

The statute provides that the definition applies “except as otherwise pro-

vided for workers subject to a managed care contract.” ORS 656.005(12)(b). Both

parties focus on the definition in the statute and neither argues that an exception

applies here. We therefore do not address that exception.

328 Precision Castparts Corp - PCC Structurals v. Cramer

physician at the time of claim closure and that the notice of

closure was therefore premature and unreasonable, because

it was not based on sufficient information provided by an

attending physician, as required by ORS 656.245(2)(b)(C).

The ARU initially determined that Constien, not

Anderson, was claimant’s attending physician. But the

ARU ultimately determined that claimant did not have an

attending physician at the time of claim closure. Thus, the

ARU set aside the notice of closure based on a lack of “suffi-

cient information.”

Employer requested a hearing, seeking to reinstate

the notice of closure. Among other arguments, employer

contended that the ARU had erred in determining that

Anderson was not claimant’s attending physician, as

defined in ORS 656.005(12)(b), who could provide sufficient

information for closure of the claim. Employer asserted that

Anderson had been primarily responsible for treatment of

claimant’s injury and therefore constituted an “attending

physician” as defined in ORS 656.005(12).

An administrative law judge (ALJ) upheld the

ARU’s determination that claimant did not have an attend-

ing physician at the time of claim closure, as well as its

order setting aside the notice of closure. The ALJ based that

conclusion on evidence that, although claimant had seen

Anderson three times, she had primarily seen her primary

care physician and considered him to be her attending phy-

sician and had returned to Anderson only when Constien

was unable to authorize physical therapy. The ALJ found,

based on that evidence, that claimant had changed her

“treating” physician to her primary care physician.6 The

ALJ further assessed a penalty under ORS 656.268, finding

that employer had unreasonably closed the claim, because,

in the absence of an attending physician, there was insuffi-

cient information for claim closure.

The board affirmed the ALJ’s order and adopted its

findings, along with the assessment of a penalty. In affirm-

ing the ALJ’s findings, the board found:

6

Although the ALJ used the term “treating physician,” it is clear that in this

context, the ALJ considered it to be synonymous with “attending physician.”

Cite as 320 Or App 324 (2022) 329

“Based primarily on claimant’s actions and words, the

evidence established that she did not have a treating phy-

sician for her right shoulder strain claim at the time of

closure. The employer’s position that claimant’s actions

and words regarding her treating physician were irrele-

vant was not persuasive. Claimant’s refusal to treat with

Dr. Anderson after July 27, 2018, her consistent statements

that Dr. Anderson was not her treating physician and she

would not return to him, along with her persistent efforts

to find a new physician were all relevant facts in determin-

ing that she did not have an attending physician at the

time of closure. Therefore, the ARU correctly concluded

that the employer improperly relied on the findings and

conclusions of Dr. Anderson, the ARU properly rescinded

the Notice of Closure, and the Order on Reconsideration

will be approved.”

As explained further below, the board also upheld the

assessment of a penalty.

On judicial review, employer challenges the assess-

ment of a penalty based on the determination that the claim

had been unreasonably closed. That argument depends at

least in part on employer’s contention, in its first and sec-

ond assignments, that the board erred in determining that

Anderson was not claimant’s attending physician. Employer

asserts that, whether or not claimant wanted him to be her

attending physician, Anderson was claimant’s attending

physician at the time of claim closure based on the services

he provided, as the term “attending physician” is defined in

ORS 656.005(12).

In response, claimant relies on her statutory right

to change attending physicians and contends that the

evidence of her decision to treat with Constien and her

expressed desire to have an attending physician other than

Anderson supports the board’s finding that she did not

have an attending physician at the time of claim closure.

Employer responds that whether or not claimant desired to

have a different attending physician, the evidence supports

a determination that services that Anderson actually pro-

vided show that he was the attending physician at the time

of claim closure.

330 Precision Castparts Corp - PCC Structurals v. Cramer

It is clear from the board’s order that the board

understood the statutory definition of an attending physi-

cian as set forth in ORS 656.005(12)(a). In employer’s view,

the board did not apply that definition correctly, because it

placed too much weight on claimant’s belief that Anderson

was not her attending physician.

The board has held, and we agree, that whether a

medical service provider is an attending physician under

ORS 656.005(12)(a) is a question of fact. We agree with the

board that, contrary to employer’s contention, in addition to

the treatment that was actually provided, claimant’s choice

of an attending physician was relevant to whether Anderson

was “primarily responsible” for her treatment. Claimant

could and did decide that she did not want Anderson to be

responsible for her treatment, which she communicated by

her decision to seek treatment from Constien and through

her counsel’s correspondence with the MCO. See ORS

656.245(2)(a) (“The worker may choose an attending doctor.”

(Emphasis added.)).

But even if we were to conclude, as employer con-

tends, that claimant’s wishes had no bearing on the deter-

mination of who was her attending physician (or that

claimant’s counsel’s representations concerning claimant’s

wishes do not constitute “evidence,”)7 we would still conclude

that the board’s finding that Anderson was not claimant’s

attending physician is supported by substantial evidence.

In affirming the ALJ’s order, the board found that, although

claimant initially consented to Anderson as her attending

physician, claimant had decided to treat with Constien and

that, when Constien was no longer willing to continue to

treat claimant, claimant saw Anderson only once and only

for the purpose of obtaining a referral for physical therapy,

because she was required to do so by the MCO. The board

further relied on a review of claimant’s medical records.

Based on that record, the board could find that Anderson

was not the provider “primarily responsible” for claimant’s

7

But see ORS 656.283(6) (“[T]he Administrative Law Judge is not bound by

common law or statutory rules of evidence or by technical or formal rules of pro-

cedure, and may conduct the hearing in any manner that will achieve substantial

justice.”).

Cite as 320 Or App 324 (2022) 331

treatment. Thus, we conclude that the board did not err in

adopting and affirming the ALJ’s finding that claimant did

not have an attending physician at the time of claim closure

and that, for that reason, the information was not sufficient

under ORS 656.245(2)(b)(C) to allow the claim to be closed.

We next consider employer’s contention in its third

assignment that the board, in affirming the ALJ’s order,

erred in assessing a penalty under ORS 656.268(5)(f) for

employer’s unreasonable closure of the claim. The ALJ

explained the rationale in support of the penalty:

“Based on the evidence presented in this case, including

[various exhibits that included claimant’s medical records],

I conclude that the employer’s reliance on the findings and

conclusions of Dr. Anderson to issue the September 10,

2018 Notice of Closure was unreasonable. Claimant consis-

tently and adamantly stated to the employer and the WCD

Medical Director that Dr. Anderson was not her treating

physician, she did not consider him to be her treating phy-

sician, and she would not be returning to him for further

medical care. * * * Consistent with those statements, claim-

ant did not treat with Dr. Anderson after July 27, 2018,

and began treating with Dr. Kerfoot on September 26, 2018

* * *. Contrary to employer’s contention, claimant’s written

statements expressed highly relevant personal beliefs about

who she considered to be her treating physician. Although

claimant’s beliefs were only part of the overall picture, her

actions were consistent with those statements. Together,

claimant’s words and deeds left the employer with no legit-

imate doubt: Dr. Anderson was not her treating physician

at the time of closure. Whether claimant’s treating physi-

cian was Dr. Constien or she simply did not have a treating

physician when the claim was closed, the employer’s Notice

of Closure was unreasonable because there was insufficient

information available to close the claim. Therefore, claim-

ant is entitled to a penalty if there was compensation due

upon which to base that penalty.”

The board affirmed that conclusion, emphasizing in its

order on reconsideration that “employer’s reliance on

Dr. Anderson’s opinion as claimant’s attending physician in

issuing its closure notice was unreasonable.”

The evaluation of whether employer’s closure was

reasonable depends on whether it had a legitimate doubt

332 Precision Castparts Corp - PCC Structurals v. Cramer

as to whether the claim could be closed. Liberty Northwest

Ins. Corp. v. Olvera-Chavez, 267 Or App 55, 64, 339 P3d

928 (2014). “An insurer’s conduct is not unreasonable if the

insurer had a legitimate doubt about its liability.” Id. Here,

the focus is on whether it was unreasonable for employer

to close the claim because employer had a legitimate doubt

that Anderson was not the attending physician at the time

of closure. Employer contends that its closure of the claim

was reasonable in light of the information that it had at the

time of closure concerning whether Anderson was claimant’s

attending physician, and that the board therefore erred in

assessing a penalty.

We review the board’s order assessing a penalty

for whether the board applied the correct legal standard,

and for whether its finding of reasonableness has substan-

tial evidentiary support in light of the evidence available

to employer at the time of claim closure. Providence Health

System v. Walker, 252 Or App 489, 505, 289 P3d 256 (2012).

We conclude that the board applied the correct legal stan-

dard, and that substantial evidence supports the board’s

finding that it was unreasonable for employer to close the

claim because employer did not have legitimate doubt that

Anderson was not the attending physician.

Employer first contends that the board erred because,

in applying the reasonableness standard, the board “judged

employer’s actions in substantial part on information not

available at the time.” That is, employer contends that the

board’s reference to claimant’s “words and deeds” and par-

ticularly its reference to her “beliefs” were based on the

evidence of claimant’s unexpressed personal beliefs about

who she considered to be her treating physician, and that

those beliefs did not reach employer. In context, we cannot

agree with employer’s reading of the ALJ’s order, which

was adopted by the board. We understand the entire order

to refer to claimant’s express statements and actions that

were conveyed to the employer. Indeed, the order’s discus-

sion of the issue commences with the statement that claim-

ant “consistently and adamantly expressed to the employer

and the WCD Medical Director that Dr. Anderson was not

her treating physician,” and then concludes with explaining

Cite as 320 Or App 324 (2022) 333

how her conduct at the time confirmed those expressions of

her belief.

Employer next contends that the order did not cite

the standard for reasonableness or discuss whether employer

had doubts that liability existed. We again disagree with

employer’s reading of the order. The board, in fact, used

the “legitimate doubt” standard that both employer and

claimant agree controls the issue here. It cited the rele-

vant law and further applied the legitimate-doubt stan-

dard to the ultimate issue: whether employer could reason-

ably close the claim because it had legitimate doubt about

Anderson’s status as the “attending physician” as defined

in ORS 656.005(12)(b). It then concluded that the evidence

“left the employer with no legitimate doubt: Dr. Anderson

was not [claimant’s] treating physician at the time of

closure.”

Finally, employer contends that the board’s order

lacked substantial reason because it did not articulate the

board’s reasoning or explain how the facts led to the board’s

conclusion. See Taylor v. SAIF, 295 Or App 199, 203, 433

P3d 419 (2018) (stating that “an order is supported by sub-

stantial reason when it articulates the reasoning that leads

from the facts found to the conclusions drawn” (internal

quotation marks omitted)). Employer’s argument is, again,

premised on the contention that the board relied solely on

claimant’s personal beliefs and did not address how those

beliefs outweighed other available information regarding

who was claimant’s attending physician. Having reviewed

the order, we again disagree. As explained above, the board

did not rely solely on claimant’s beliefs, but explained how

all of the evidence—including claimant’s actions, her history

with her doctors, and her medical records—made it unrea-

sonable for the employer to believe that Anderson was the

attending physician “primarily responsible” for claimant’s

treatment—or, in other words, expressed in the unfortu-

nate double negative, that employer had no legitimate doubt

that Anderson was not the attending physician. See Liberty

Northwest Ins. Corp., 267 Or App at 64 (stating “an insurer’s

conduct is not unreasonable if the insurer had a legitimate

doubt about its liability”).

334 Precision Castparts Corp - PCC Structurals v. Cramer

In sum, based on the arguments presented to us

and our review of the board’s order, we conclude that the

board did not err in assessing a penalty.

Affirmed.