Stanley Smith Security v. Pace

RICHARDSON, C. J.,

dissenting.

I agree with the majority that the Board correctly concluded that the chiropractor’s report constituted a claim for aggravation under the 1991 amendments to ORS 656.273(3). I disagree with its holding that employer was required to pay interim compensation on the claim that was ultimately found to be noncompensable. The issue on which we disagree is whether the 1991 amendments to ORS 656.273 changed the law about interim compensation. The majority says they did not.

As amended, ORS 656.273 provides, in part:

“(1) After the last award or arrangement of compensation, an injured worker is entitled to additional compensation, including medical services, for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence supported by objective findings. However, if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable. * * *
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“(3) A physician’s report establishing the worsened condition by written medical evidence supported by objective findings is a claim for aggravation.
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“(6) A claim submitted in accordance with this section shall be processed by the insurer or self-insured employer in accordance with the provisions of ORS 656.262, except that the first instalment of compensation due under ORS 656.262 shall be paid no later than the 14th day after the subject employer has notice or knowledge of medically verified inability to work resulting from a compensable worsening under subsection (1) or (8) of this section.
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‘ ‘ (8) If the worker submits a claim for aggravation of an injury or disease for which permanent disability has been previously awarded, the worker must establish that the worsening is more than waxing and waning of symptoms of the *612condition contemplated by the previous permanent disability award.” (Emphasized language added by Or Laws 1990, Special Session, ch 2, § 18.)

In Jones v. Emanuel Hospital, 280 Or 147, 151, 570 P2d 70 (1977), the court coined the term “interim compensation” to describe time loss benefits payable to a claimant pursuant to ORS 656.262(2), (4) and (5) between the time when the employer first has knowledge of the claim and when the claim is either accepted or denied. Before it was amended, ORS 656.273(6) required an employer to begin payment of compensation on an aggravation claim “no later than the 14th day after the subject employer has notice or knowledge of medically verified inability to work resulting from the worsened, condition.” (Emphasis supplied.) Relying on that language and the statute’s reference to ORS 656.262(4), which, in 1979, required payment of benefits no later than the 14th day after the employer had notice or knowledge of an injury claim, we held in Silsby v. SAIF, 39 Or App 555, 592 P2d 1074 (1979), that a worker making an aggravation claim may be entitled to interim compensation.

The new language in ORS 656.273(6) requires that compensation be paid no later than the 14th day after employer has notice of a medically verified inability to work resulting from “a compensable worsening under subsection (1) or (8)” of ORS 656.273. (Emphasis supplied.) The statute now speaks of compensable worsening, not just a worsened condition, as the trigger for an employer’s obligation to begin paying benefits.

As we said in Silsby v. SAIF, supra, ORS 656.273 is a procedural statute and relates only to “when compensation payments must actually be made, not to what period of time the payments must cover.” 39 Or App at 562. The question here is whether ORS 656.273 still requires an employer to begin making payment of benefits for time loss from the 14th day after it has notice of an aggravation claim, even if the claim has not been accepted or ordered accepted. The Board held that it does; the majority takes comfort by quoting the Board’s opinion.

I do not agree with the Board’s or the majority’s analysis. In the first place, the legislative changes involve much more than the addition of a “single word.” There are *613many changes, and the statute must be read in its entirety to determine what they mean.

A compensable worsening is only established by ‘ ‘medical evidence supported by objective findings” showing a worsened condition resulting from the original injury. ORS 656.273(1); Smith v. SAIF, 302 Or 396, 730 P2d 30 (1986). A claim is compensable either if the employer accepts it or if it is otherwise determined to be compensable under the standards in the statute. Only after compensability is established is an employer required to begin paying any compensation.

I reject the Board’s conclusion that the legislature intended that a medical report that satisfies the requirements of ORS 656.273(3) as an aggravation claim necessarily is sufficient to trigger the obligation to begin paying benefits. If the legislature had intended that, it could have straightforwardly said so. Instead, it clearly added a critical word to the equation that supports my analysis. The Board (and the majority) would attach no significance to words that are virtually terms of art in compensation law. If the legislature had intended what the majority says, it could have left out the phrase “compensable worsening” and left in the phrase “worsened condition.” The referee concluded that claimant has not established a compensable worsening of her condition, and she does not challenge that. She is, therefore, not entitled to any benefits for time loss.