Simi v. LTI Inc.- Lynden Inc.

“Under ORS 656.267, a claimant is required to initiate a new or omitted medical condition claim [when]… (d) ‘an injured worker who believes that a condition has been incorrectly omitted from a notice of acceptance, or that the notice is otherwise deficient, first must communicate in writing to the insurer or self-insured employer the worker’s objections to the notice pursuant to ORS 656.267. The insurer or self-insured employer has 60 days from receipt of the communication from the worker to revise the notice or to make other written clarification in response.’… The claim is then required to be processed pursuant to ORS 656.262(7) [wherein] (c)… ‘If a condition is found to be compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition.’”

Petitioner appealed a decision of the Worker’s Compensation Board as to the denial of benefits for a subsequent rotator cuff tear. Petitioner assigned error to the Board’s failure to find that, because a new compensable injury was sustained, the claim needed to be reopened. On Appeal, Petitioner argued that under ORS 656.262(7), a claim was to be reopened “anytime a condition is determined to be compensable after claim closure,” regardless of whether the condition was new or omitted, aggravated, or combined. The Board explained that, because the new tears found by the treating surgeon were encompassed within the original 2010 rotator cuff tear injury, this was not a new or omitted condition under that statute as to render a reopening and reprocessing of the original 2010 claim. “Under ORS 656.267, a claimant is required to initiate a new or omitted medical condition claim [when]… (d) ‘an injured worker who believes that a condition has been incorrectly omitted from a notice of acceptance, or that the notice is otherwise deficient, first must communicate in writing to the insurer or self-insured employer the worker’s objections to the notice pursuant to ORS 656.267. The insurer or self-insured employer has 60 days from receipt of the communication from the worker to revise the notice or to make other written clarification in response.’… The claim is then required to be processed pursuant to ORS 656.262(7) [wherein] (c)… ‘If a condition is found to be compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition.’” The Court determined that the intent of ORS 656.262(7)(c), following ORS 656.267, was to “impose an obligation to reopen a claim for processing only for conditions that are in fact determined to be compensable as new or omitted conditions,” not those merely “alleged” to be new or omitted. Therefore, the Board did not err in rejecting Petitioner’s request to reopen the claim because the original 2010 claim was not required to be reopened. Affirmed.