MEHERIN v. STAYTON CANNING CO., 94 Or. App. 173 (1988)

764 P.2d 619

In the Matter of the Compensation of Barbara June Meherin, Claimant. MEHERIN, Petitioner — Cross-Respondent, v. STAYTON CANNING CO., Respondent — Cross-Petitioner.

86-00160; CA A45922Oregon Court of Appeals.Argued and submitted September 9, 1988
On petition, remanded to the board to determine compensability of claimant’s scoliosis and otherwise affirmed; affirmed on cross-petition November 23, 1988

Judicial Review from Workers’ Compensation Board.

Bruce D. Smith, Salem, argued the cause for petitioner — cross-respondent. With him on the briefs was Michael B. Dye, Salem.

Craig A. Staples, Portland, argued the cause for respondent — cross-petitioner. With him on the brief was Roberts, Reinisch
Klor, P.C., Portland.

Page 173-a

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.

PER CURIAM

On petition, remanded to Board to determine compensability of claimant’s scoliosis and otherwise affirmed; affirmed on cross-petition.

Page 173-b

[EDITORS’ NOTE: THIS PAGE IS BLANK.]

Page 174

PER CURIAM

In this workers’ compensation case, claimant experienced a compensable back injury, which employer accepted. Employer subsequently issued a “partial denial” of claimant’s scoliosis. Claimant properly challenged the denial by requesting a hearing. The referee determined that the scoliosis was compensable, and that, in addition, employer’s denial of the condition was precluded by Bauman v. SAIF, 295 Or. 788, 670 P.2d 1027 (1983). The Board correctly reversed the referee on the Bauman question, noting that Johnson v. Spectra Physics, 303 Or. 49, 733 P.2d 1367
(1987), permits the partial denial of a condition that has not, as here, been formally accepted. However, it erred in remanding the matter to the Evaluation Division to determine the compensability of the scoliosis. The parties agree that the Board should have determined that question.

On petition, remanded to the Board to determine the compensability of claimant’s scoliosis and otherwise affirmed; affirmed on cross-petition.

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