Marsh v. SAIF

“’To prevail on a new or omitted condition claim under ORS 656.267, claimants are required to establish, with medical evidence, the actual existence of the condition,’ and that proof of ‘mere symptoms’ is insufficient.” De Los-Santos v. Si Pac Enterprises, Inc., 278 Or app 254, 257, 373 P3d 1274 (2016). “OAR 436-060-0025(5)(a)(A) requires the ‘average weekly wage’ be calculated using the ‘actual weeks of employment.’”

Claimant sought review of an order of the Workers’ Compensation Board upholding SAIF’s award for temporary disability benefits for an accepted claim for low back strain and SAIF’s denial of a new/omitted medical condition claim. Claimant assigned error to the Board’s decision requiring Claimant to establish the actual existence of the claimed injury. Further, Claimant also assigned error to the Board’s decision to uphold SAIF’s calculation of Claimant’s weekly wage for purposes of determining Claimant’s benefits for temporary disability. On appeal, Claimant argued that to prevail on a new/omitted medical condition claim, it is enough to establish only that the claimed symptoms are attributable to the work injury. Claimant further argued that SAIF’s calculation of benefits for temporary disability was erroneous because SAIF failed to account for partial weeks worked, and instead counted every week Claimant worked as a whole week worked, therefore reducing the calculation of his weekly wage.  “’To prevail on a new or omitted condition claim under ORS 656.267, claimants are required to establish, with medical evidence, the actual existence of the condition,’ and that proof of ‘mere symptoms’ is insufficient.” De Los-Santos v. Si Pac Enterprises, Inc., 278 Or app 254, 257, 373 P3d 1274 (2016). “OAR 436-060-0025(5)(a)(A) requires the ‘average weekly wage’ be calculated using the ‘actual weeks of employment.’” The Court found that the Board did not err in denying the new/omitted medical condition claim. However, the Court held that, under OAR 436-060-0025(5), the Board erred in upholding SAIF’s calculation of Claimant’s weekly wage for purposes of determining Claimant’s benefits for temporary disability, as the “actual number of whole and partial weeks Claimant worked must be taken into account.”  Determination of benefits for temporary disability reversed and remanded; otherwise affirmed.