Johansen v. SAIF

FILED: May 19, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

In the Matter of the Compensation of

Paul D. Johansen, Claimant.

PAUL D. JOHANSEN,

Petitioner,

v.

SAIF CORPORATION and

PATTERSON PLUMBING,

Respondents.

(WCB 96-05209; CA A100445)

Judicial Review from Workers' Compensation Board.

On respondents' petition for reconsideration filed March 17, 1999; on petitioner's response filed March 29, 1999. Opinion filed March 3, 1999. 158 Or App 672, ___ P2d ___.

David L. Runner for petition.

Edward J. Hill and Carney, Buckley, Kasameyer & Hays contra.

Before De Muniz, Presiding Judge, and Haselton and Linder, Judges.

LINDER, J.

Reconsideration allowed; opinion adhered to.

LINDER, J.

SAIF Corporation has filed a petition for reconsideration of our opinion in Johansen v. SAIF, 158 Or App 672, ___ P2d ___ (1999), contending that we erred in determining that claimant is entitled to benefits for temporary total disability (TTD) for a new medical condition. We write only to address SAIF's assertion that we committed a "technical error" in remanding the case for an award of TTD benefits rather than for a determination of whether claimant is entitled to TTD benefits. SAIF contends that claimant's entitlement to benefits for temporary disability has never been determined.

The record shows that at the hearing SAIF raised legal and factual challenges to claimant's entitlement to benefits. The administrative law judge (ALJ) found as a factual matter that claimant's physician had authorized benefits for time loss and that claimant was disabled. Before the Workers' Compensation Board, SAIF made legal challenges to claimant's entitlement to benefits but did not challenge the ALJ's findings of authorization or disability. The Board adopted the ALJ's findings, including its findings regarding authorization of time loss and disability, and agreed with SAIF's legal assertion that claimant was not entitled to benefits. But the Board also said, "We are not holding that claimant may not obtain reclassification or that his claim was not disabling." In its brief on judicial review, SAIF made no argument with regard to the factual issue of disability or authorization. We consider those arguments to be waived.

Reconsideration allowed; opinion adhered to.