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In re Compensation of Boling6/19/2002
Argued and submitted May 9, 2002.
Affirmed.
Employer seeks review of an order on review of the Workers' Compensation Board that affirmed an order of the administrative law judge ALJ modifying an order on reconsideration to set aside employer's notices of claim closure as premature. The ALJ found that claimant's accepted foot condition was not medically stationary when employer issued claim closure notices on April 27 and September 6, 2000. Although employer asserts that the board's order is erroneous as a matter of law, our decision ultimately turns on review for substantial evidence. ORS 183.482(8)(c). We affirm.
On May 3, 1994, while working for employer, claimant fell from a ladder, injuring his right foot. Employer's insurer initially accepted a claim for a nondisabling metatarsal contusion. In December 1998, claimant had surgery on the 2-3 web space of his right foot, and, later that month, employer reopened and accepted claimant's claim as disabling, based on a Morton's neuroma of the right foot. In January 2000, claimant underwent surgery for the neuroma. Claimant was unable to return to his customary work as a boiler attendant after the surgery because of symptoms and limitations in the use of his right foot. He was released to sitting work in March. On April 18, employer's insurer denied the compensability of claimant's current right foot condition and, on April 27, it issued a notice of closure based on the current condition denial. Claimant requested reconsideration of the notice of closure, and the Department of Consumer and Business Services (DCBS) affirmed the closure in an order on reconsideration.
On July 24, claimant requested that employer add the following conditions to its acceptance of the claim: "scar tissue, right third intermetatarsal space, persistent right foot pain with metatarsalgia." On September 6, employer accepted the new conditions and issued a closure notice for those conditions on the same date. The department issued a second reconsideration order in December that addressed only the newly accepted conditions and upheld employer's September 6 closure notice. Claimant sought a hearing on both reconsideration orders, arguing that the department should have set aside the notices of closure as premature on the ground that he was not medically stationary. The ALJ determined that claimant was not medically stationary at the time of either closure and modified both reconsideration orders to set aside the closure notices as premature. The board affirmed on review, and employer seeks judicial review of the board's order.
Employer's first assignment of error asserts that, because claimant's condition changed after the initial closure of the accepted conditions, the board erred in relying on post-closure reports from claimant's treating physician, Dr. Puziss, in determining that claimant was not medically stationary when the notice was issued.
In its second assignment of error, employer asserts that the board erred as a matter of law in setting aside both closure notices based on findings that claimant has continuing injury-related findings and limitations, and on Puziss' prescription of custom orthotics as a "palliative" measure. Employer argues that neither of those findings demonstrates that claimant was not medically stationary when the closure notices were issued.
There is conflicting medical evidence in the record. Dr. Courogen, the insurer's examining physician, opined that claimant had been medically stationary since December 1994. The medical arbiters reported that claimant was medically stationary when they examined him on August 16, 2000. Dr. Noall, who performed claimant's two surgeries, s
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