Gregg v. State Accident Insurance Fund Corp.

725 P.2d 930 (1986) 81 Or. App. 395

In the Matter of the Compensation of Charles L. Gregg, Claimant.
Charles L. GREGG, Petitioner,
v.
STATE ACCIDENT INSURANCE FUND CORPORATION, and Bruno Logging & Construction, Respondents.

WCB 84-10197; CA A36642.

Court of Appeals of Oregon.

Argued and Submitted March 24, 1986. Decided September 24, 1986.

Philip H. Garrow, Bend, argued the cause and filed the brief for petitioner.

Douglas F. Zier, Asst. Atty. Gen., Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Claimant seeks reversal of a Workers' Compensation Board order which upheld SAIF's denial of compensation for symptoms known as Raynaud's phenomenon, a blanching, numbness and tingling of the hands. We affirm the Board and write only to correct what we perceive to be a persistent misconception of the scope of the Supreme Court's decision in Bauman v. SAIF, 295 Or. 788, 670 P.2d 1027 (1983).

Claimant suffered a back injury on October 8, 1982, when he was struck in the back at chest level with a swinging log. SAIF expressly accepted the claim for the back injury on October 25, 1982, and began paying benefits. Claimant's hand symptoms were first mentioned in a medical report on January 13, 1983. Treatment for the back had virtually ceased by that time, but SAIF continued to pay benefits for medical treatment and time loss for the hand condition. The worker's compensation department issued a determination order on September 13, 1984, awarding temporary total disability. On November 28, 1984, SAIF issued a partial denial, rejecting the compensability of the Raynaud's phenomenon hand symptoms.

Initially, we note that the parties have never treated the Raynaud's phenomenon as a separate claim. They have regarded it from the outset as an aspect of the injury claim, as indicated by SAIF's "partial denial." At the time when SAIF accepted the claim, however, it had no notice of claimant's hand symptoms, which we have concluded are not medically related to the back condition, and its acceptance, therefore, did not encompass the Raynaud's phenomenon. Destael v. Nicolai Company, 80 Or.App. 596, 723 P.2d 348 (1986).^[1] Claimant does not seriously contend otherwise.

Claimant asserts, rather, that SAIF, having paid benefits after it learned of the hand symptoms, is deemed, under Bauman, to have accepted responsibility. The Supreme Court held in Bauman that, when an insurer expressly accepts a claim, it may not reverse that decision after the 60 days provided under ORS 656.262(6) for acceptance or denial of a claim. If the insurer has not expressly accepted the claim, however, a different rule applies. See Frasure v. Agripac, 290 Or. 99, 619 P.2d 274 (1980). ORS 656.262(9) provides, in part:

"Merely paying or providing compensation shall not be considered acceptance of a claim or an admission of liability * * *."

In Bauman the court stated that that provision protects an insurer which begins payments under ORS 656.262(4) without accepting the claim from having the payments interpreted as acceptance. That insurer is not subsequently barred from denying the claim. The payment of benefits does not constitute constructive acceptance.

SAIF's payment of benefits for the hand condition did not preclude it from denying that the condition was a result of the accident.

Affirmed.

NOTES

[1] Compare Johnson v. Spectra Physics, 77 Or. App. 1, 5, 712 P.2d 125 (1985), rev. allowed, 301 Or. 165, 719 P.2d 873 (1986), where the insurer had knowledge of the second condition at the time when it expressly accepted the claim.