Halton Co. v. Nacoste
Halton Co. v. Nacoste
Opinion of the Court
The question in this workers’ compensation case is whether the Workers’ Compensation Board erred in concluding that claimant is entitled to compensation for temporary partial disability from June 21, 2011 to September 28, 2011. In reviewing the board’s order for substantial evidence and errors of law, ORS 656.298(7); ORS 183.482(7), (8), we conclude that the board erred and we therefore reverse and remand the award.
The facts are largely undisputed, and we draw them from the board’s order and the medical record. Claimant suffered a compensable knee injury in 2008, and employer accepted a claim for a right knee medial meniscus tear. Claimant chose not to undergo surgical repair at that time, and he was treated with medication, a knee brace, and injections. The claim closed by a notice of closure in early 2009, with an award of two percent whole person impairment for loss of right knee range of motion.
Claimant continued to suffer knee pain. He returned to his doctor, who recommended surgery to repair the meniscus and, in March 2011, authorized modified work.
In the meantime, on September 28, 2011, claimant’s physician performed a partial medial meniscectomy on claimant’s right knee. Beneath the torn meniscus, the doctor found “an area of grade 3 chondromalacia of the tibial plateau,” a wearing away of the cartilage secondary to a right medial meniscus tear. Claimant subsequently filed a new/omitted medical condition claim for right knee chon-dromalacia of the tibial plateau. Employer issued a notice accepting the claim in June 2012.
Upon closing that claim, employer awarded claimant temporary disability benefits from September 28, 2011 through September 12, 2012; nine percent whole person impairment; and 15 percent work disability. The updated
Claimant requested reconsideration, seeking additional temporary disability benefits. Limiting its consideration to the new/omitted medical condition claim of chon-dromalacia, the Appellate Review Unit (ARU) awarded claimant time loss from the day in March 2011 on which claimant’s physician had authorized modified work through the day in May 2012 on which claimant’s physician determined he was medically stationary.
Employer challenged the award of benefits for the period of June 21, 2011 through September 28, 2011. An ALJ and the board upheld the award. But unlike the ARU and the ALJ,
On judicial review, employer challenges the board’s determination. ORS 656.212 provides for payment of temporary partial disability benefits when a worker suffers temporary partial disability as a result of a compensable injury, as authorized by the worker’s attending physician. ORS 656.262(4).
We also reject claimant’s contention that there was medical authorization of temporary disability benefits for the new/omitted medical condition claim of chondromalacia for the period June 21,2011 to September 28, 2011. Although the ARU based its award of time loss on the chondromalacia, the board did not, with good reason. There is no evidence of
Award of temporary disability benefits for the period June 21, 2011 through September 28, 2011, reversed and remanded; otherwise affirmed.
Claimant’s attending physician continued to authorize time loss through May 2012, when claimant’s physician deemed him medically stationary.
The letter stated, in substantive part:
“After review of your request for aggravation reopening we must hereby deny your aggravation claim for the following reason(s):
“Pursuant to ORS 656.273, after the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. * ⅜ *
“The medical information in your file reflects that your symptoms and objective findings have been unchanged since the Notice of Closure issued in February of 2009. Further, the need for repair of the meniscus tear is also unchanged.
*422 “The denial is based, in part, upon the opinions of an independent medical examiner. Your attending physician ⅜ ⅜ ⅜ has agreed with the opinions expressed by the independent medical examiner.
“Without waiving any other potential defenses, Pinnacle Risk Management Services respectfully denies your aggravation claim.
“Please note that once you have undergone repair of the [medial] meniscus tear in your right knee, we will voluntarily reopen your claim for aggravation at that time. In addition, all medical bills related to your right knee medial meniscus tear are being honored under the palliative care rules.”
“Interim compensation” is a judicially created term for temporary disability compensation that must be paid pursuant to ORS 656.262 within 14 days of the employer’s knowledge of a claim, pending acceptance or denial of the claim. Jones v. Emanuel Hospital, 280 Or 147, 152, 570 P2d 70 (1977).
We affirmed the board’s order in Nacoste v. Halton Co., 275 Or App 600, 365 P3d 1098 (2015).
The modified notice of acceptance stated, “Your claim was previously accepted as a medial meniscus tear of the right knee. Based upon a review of the information in your file, we are modifying your acceptance. Your claim is now accepted for right knee chondromalacia of the medial tibial plateau.”
The term “time loss” is not defined in ORS chapter 656. However, it is often used, in the workers’ compensation context as a shorthand reference to temporary disability benefits (or to the payment of, or entitlement to, those benefits). See, e.g., Scott v. Liberty Northwest Ins. Corp., 268 Or App 325, 327, 341 P3d 220 (2014) (equating “benefits for temporary disability” with “time loss”).
The ALJ stated, “Simply put, this record does not contain an accepted aggravation claim.”
In support of its finding that the notice encompassed an acceptance of an aggravation claim, the board cited employer’s letter to claimant stating that it would voluntarily accept an aggravation claim after claimant’s surgery, employer’s payment of disability benefits as of the date of the surgery, and employer’s payment of permanent impairment based on the surgery. The board said that “[t]ogether, these documents support the proposition that the claim was reopened for both an aggravation of claimant’s previously accepted right knee meniscus tear and a new/omitted chondromalacia condition.”
ORS 656.262(4) provides, in part:
“(a) The first installment of temporary disability compensation shall be paid no later than the 14th day after the subject employer has notice or knowledge of the claim, if the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 authorizes the payment of temporary disability compensation.
“* ‡ * ‡ :|:
“(d) 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 work, unless the worker has been unable to receive treatment for reasons beyond the worker’s control.
«* ⅜ * * *
“(g) Temporary disability compensation is not due and payable pursuant to ORS 656.268 after the worker’s attending 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. No authorization of temporary disability compensation by the attending physician or nurse practitioner under ORS 656.268 shall be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance.
“(h) The worker’s disability may be authorized only by a person described in ORS 656.005(12)(b)(B) or 656.245 for the period of time permitted by those sections. The insurer or self-insured employer may unilaterally suspend payment of temporary disability benefits to the worker at the expiration of the period until temporary disability is reauthorized by an attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.