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Game changers?
Recent decisions from the
Oregon appellate courts
Julie Masters, Appellate Attorney
Brian Worthington, Claims Supervisor
Schleiss v. SAIF:
A surprising Supreme Court opinion
surprise
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
surprise
surprise
Schleiss facts....
• A lumbar strain claim closed with no permanent partial disability.
• Claimant requested reconsideration and the medical arbiter found
some limited range of motion.
• The arbiter stated he would “attribute the findings mainly to the
off-the-job factor.”
• He apportioned 33 percent of the problem to the work injury and
67 percent “secondary to his pre-existing mild degenerative joint
disease and long history of smoking.”
• The department applied its rule for apportioning impairment
between the accepted condition and unrelated conditions.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Schleiss Court of Appeals arguments
• Claimant argued to the Court of Appeals that he should be:
• Entitled to work disability
• Entitled to a 5 percent “chronic condition” award for significant limitation in
repetitive use
• Entitled to the full award for range of motion without apportionment
• The Court of Appeals rejected all his arguments.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Schleiss Supreme Court arguments
• Claimant petitioned for Supreme Court review.
• He argued that his impairment should not have been apportioned.
• Material cause is the default standard of proof for workers’ compensation.
• The injury was a material cause of his impairment.
• Aging should not be a reason to reduce his award.
• The apportionment rule is invalid.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Combined condition timeline
Mahonia Hall
creates combined
conditions and
major cause test,
worker burden of
proof, notice of
acceptance
SB 485 limits
preexisting conditions
to previously treated
or arthritic, and shifts
burden to employer to
prove injury not major
cause
•1990
•2001
SB 369 reforms
reassert combined
conditions, create new
and omitted condition
claims requiring written
notice, closure of
denied combined
conditions
•1995
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Schleiss decision
holds non-qualified
preexisting
conditions may not
be apportioned out
at closure
•2013
Schleiss: Supreme Court decision
• Only qualified preexisting conditions are legally recognizable.
• Claimant’s preexisting conditions were not qualified.
• The legislature would not logically have allowed
apportionment of unrecognized preexisting conditions at
closure when these conditions could not be denied in a
“true combined condition claim.”
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Schleiss: What wasn’t decided
• The court did not say impairment is rated on a material
cause standard.
• The court did not say that the apportionment rule is
invalid for all purposes.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
SAIF response to the Schleiss decision
• Policies on closing injury claims
• Developing evidence that conditions are qualified preexisting
conditions in appropriate claims
• Reserving for paying disability awards for non-qualified
preexisting conditions
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Post-Schleiss experience
• Case examples
• Non-apportionment when no impairment is due the accepted
conditions – not due to compensable injury
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Brown v. SAIF: Do accepted conditions
matter anymore?
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Brown v. SAIF background
• Worker had a prior non-work back injury with fusion.
• Worker injured back lifting tire chains.
• SAIF accepted a strain.
• Worker requested acceptance of strain combined with preexisting
degenerative disc disease.
• SAIF ordered to accept in litigation.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Brown v. SAIF issue
• SAIF issued a denial when the strain ceased to be the major
contributing cause of the combined condition.
• The Workers’ Compensation Board affirmed the denial, but one
member wrote a lengthy concurring opinion arguing that the
compensable injury is not limited to the accepted conditions.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Brown v. SAIF decision
• Claimant appealed and the Court of Appeals reversed.
• The court agreed with the concurring board member that
acceptances do not determine the scope of a claim.
• Case was remanded to determine whether the compensable
“injury-incident” had ceased to be the major contributing cause of
the combined condition.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Appeal to the Oregon Supreme Court
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Brown v. SAIF continuing
• SAIF petitioned the Supreme Court for review and the
court accepted.
• Briefing is complete.
• Arguments are scheduled for May 2015.
• The issues are:
• Whether the notice of acceptance determines the scope of a
compensable injury
• What SAIF must prove when denying a combined condition:
whether the accepted strain ceased to be the major contributing
cause of the combined condition or whether the “injury-incident”
has ceased to be the major contributing cause
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
SAIF responses to Brown v. SAIF
• Adjuster training on combined conditions
• Participated in advisory meetings with Workers’ Compensation
Division on rulemaking
• Develop evidence while processing claim
• When accepting a combined condition, focus on the injury as a
whole, including the acute accepted condition
• When denying an accepted combined condition, develop evidence
that the injury is consistent with the accepted condition
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Brown v. SAIF examples
• SAIF has continued to process claims under its understanding of
the law, but is making allowances for current case law.
• New administrative rules from WCD
• Requires rating of impairment for conditions not accepted but “resulting
directly from the work injury” in an initial injury claim
• Examples
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
SAIF v. Carlos-Macias:
“Off hand, I’d say
you’re perfectly
healthy, but just to
be sure, I’m ordering
a bunch of tests.”
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
SAIF v. Carlos-Macias
• This was SAIF’s appeal of a Board order finding diagnostics
compensable in the setting of a “current condition denial” of the
worker’s medical treatment.
• Decided the same day as Brown.
• The court decided the diagnostics were not dependent on the
accepted condition and are compensable if necessary to “ferret
out” the scope of the injury.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
SAIF v. Carlos-Macias
• SAIF petitioned for Supreme Court review.
• The Court abated its review pending the outcome of Brown.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
SAIF v. Carlos-Macias responses
• SAIF is paying for more diagnostic medical services.
• SAIF paid for many diagnostics anyway, but on close calls, the
decisions are coming down for payment.
• Other medical services are determined on a case-by-case basis.
• Still needs to be:
• Reasonable and necessary
• Prescribed by the attending physician
• If it requires MCO precertification, this is still required
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Firefighter presumption
• A rebuttable presumption that cardiovascular or lung conditions
and certain cancers are caused by firefighting
• Difficult to rebut when the cause is not known
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Firefighter cases
• Estacada Rural Fire Dist. #69 v. Hull: Not all conditions are
presumed related.
• Heart condition caused by mental stress is a mental disorder and the
presumption does not apply.
• SAIF v. Thompson: The presumption may be rebutted.
• The court agreed that SAIF rebutted the presumption when the only
medical evidence said that the firefighter’s off-work heart attack was
not work related.
• Court rejected claimant’s argument that SAIF’s evidence “attacked
the presumption.”
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Firefighter cases
• Cancer cases
• The Board held in several cases that SAIF did not rebut the presumption of
compensability when there was evidence of some association between the
cancer and this group of workers.
• Leonard C. Damian, II: Cancer is presumed work-related.
• SAIF has subsequently accepted a number of firefighter cancer cases based
on the doctors’ opinions that they cannot rule out firefighting as a substantial
cause of the cancer.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
Legislative activity
after Schleiss and Brown
• Oregon Self-Insured Association and Associated Oregon Industries
submitted a bill to correct the courts’ interpretations.
• SB 649
• SAIF supports the bill.
SAIF Corporation Workers' Compensation Insurance Seminar | 2015
© SAIF CORPORATION | April 24, 2015