OTLA Trial Lawyer Winter 2022

50 Trial Lawyer • Winter 2022 Comp Corner services for the new or omitted condition, nor by actually providing such medical services.” The Legislature did not completely obliterate the insurer’s burden to monitor medical records, however, because it required insurers to modify the notice of acceptance “from time to time as medical or other information changes a previously issued notice of acceptance.” ORS 656.262(6)(b)(F). In stark contrast, the Legislature did not include limitations on the NOMC claim itself. The claim for a condition need not be “clear” or “formal.” Specificity is not required. When a claim is made, the insurer is required to respond to the claim. SAIF v. Traner, 270 Or App 67 (2015). Only two responses are allowed by the insurer: acceptance or denial. Rose v. SAIF, 200 Or App 654 (2005). ORS 656.267 does not provide the legal standard to prove compensability of a NOMC. The Court of Appeals held the legal standard under ORS 656.005(7) (a) applies, given ORS 656.003 (the definitions govern except where context otherwise requires), and given the Legislature did not provide a standard in ORS 656.267. SAIF v. Williams, 304 Or App 233, 242 (2020). Proof of existence The Board and Court of Appeals held the claimant must prove “existence” of the condition. De Los-Santos v. SI Pac Enterprises, Inc. 278 Or App 254 (2016); Maureen Graves, 57 Van Natta 2380 (2005). Graves is interesting, because it does not really say proof of existence of a condition is required. The case addressed the notion of whether a general denial also includes the defense the condition does not exist. Nevertheless, By Julene Quinn OTLA Guardian ORS 656.267 allows a worker to make a claim for new or omitted medical conditions (NOMC) “at any time.” The statute provides “the worke r mus t c l e a r l y r e q u e s t f o rma l written acceptance.” The “clearly” modifies the “request,” and the statute requires the request to be for “formal written acceptance.” Back in the day, when the statutes were amended to require a list of compensable conditions, medical bills with accompanying chart notes were considered claims, which had to be accepted or denied within 60 days. Insurers were failing to list all of the claimed medical conditions, so injured workers were proceeding to hearings on de facto denials. Clear notice Insurers thought this was unfair and convinced the Legislature to require a “clear” “request” for “formal written acceptance.” That is, the insurers wanted clear notice of the making of a claim. They did not want to be faced with a de facto denial hearing, where penalties and attorney fees were awarded, when they failed to accept all of the medical diagnoses. To this end, the statute includes: “A claim for a new medical condition or an omitted condition is not made by the receipt of medical billings, nor by requests for authorization to provide medical Medical Conditions Issues & Topics for theWorkers’ Compensation Attorney Julene Quinn Graves is the case the Board cites for the proposition, uniformly. Neither De Los-Santos nor Graves addresses the legal standard for proof of existence. Nor does any statute, for injury claims. Occupational disease law is different and explicit on this point. ORS 656.802(2)(d) requires “[e]xistence of an occupational disease or worsening of a preexisting disease must be established by medical evidence supported by objective findings.” Injury law requires an injury be “established by medical evidence supported by objective findings.” ORS 656.005(7)(a). From this, one concludes the Legislature intended proof of existence of a NOMC be done by medical evidence supported by objective findings. “Objective findings” is defined in ORS 656.005(19). The statute has been interpreted by the Supreme Court in SAIF v. Lewis, 335 Or 92, 58 P3d 814 (2002). The definition of “objective findings” allows medical personnel to employ a range of diagnostic methods that their professions prescribe to support that an injury has occurred. Id. at 101. When a NOMC is found compensable, reopening is mandatory. Fleetwood Homes of Oregon v. VanWechel, 164 Or App 637 (1999); see Simi v. LTI Inc. – Lynden Inc., 368 Or 330 (2021). Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 971-259-8141 or julene.m.quinn@ gmail.com.