Fitzpatrick v. Freightliner Corp.

BUTTLER, P. J. Claimant appeals an order of the Board which upheld employer’s denial of payment of $738 in medical bills. We find the medical treatment to be compensable and reverse. Claimant was found to be permanently and totally disabled by a previous decision of this court for disabilities of her left hand, thorax, right hand, right shoulder, back and colon. Fitzpatrick v. Freightliner, 62 Or App 762, 662 P2d 8, rev den 295 Or 297 (1983). She also suffers from a low-back injury for which employer has been found not responsible. The medical treatment at issue was rendered by Dr. Setera, a chiropractor, who administered a variety of treatments to claimant’s arms, right shoulder, upper, mid-and low-back. He testified that those treatments were for “the entire organism” and that he could not “differentiate or separate” treatment for claimant’s compensable conditions from that administered for her non-compensable low-back problem. He never treated her low back only. That Dr. Setera may have, in the course of a unified treatment of claimant, benefitted her low-back condition by using procedures that are inseparable from those that benefitted her compensable conditions does not render the entire treatment non-compensable. The Board erred in holding that employer was not responsible for payment of Dr. Setera’s medical bill. Claimant is entitled to a penalty and attorney fees for employer’s unreasonable resistance to payment of the medical bill, ORS 656.382(1), as well as an attorney fee for prevailing on a denied claim. 656.386(1). Reversed and remanded with instructions to order acceptance of the claim and for determination of penalties and attorney fees.