SAIF v. BOWEN, 136 Or. App. 222 (1995)

901 P.2d 925

In the Matter of the Compensation of Warren N. Bowen, Claimant. SAIF CORPORATION and University of Oregon, Petitioners v. Warren N. BOWEN, Respondent.

WCB 91-15616; CA A77263Oregon Court of Appeals.Submitted on remand March 3, 1995.
Reversed and remanded with instructions September 6, respondent’s motion for reconsideration filed September 22 allowed by opinion November 15, 1995 See 137 Or. App. 598, 905 P.2d 1184 (1995).

On remand from the Oregon Supreme Court. SAIF v. Bowen, 320 Or. 501, 887 P.2d 787 (1995).

Judicial Review from Workers’ Compensation Board.

David L. Runner, Assistant Attorney General, argued the cause for petitioners. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Edward J. Harri argued the cause for respondent. With him on the brief was Malagon, Moore, Johnson, Jensen Correll.

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

DEITS, P.J.

Reversed and remanded with instructions to dismiss petition.

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DEITS, P.J.

This case is on remand from the Supreme Court for reconsideration in the light of Martin v. City of Albany, 320 Or. 175, 880 P.2d 926 (1994), and Niccum v. South Coast Lumber Co., 320 Or. 189, 880 P.2d 923 (1994). SAIF v. Bowen, 320 Or. 501, 887 P.2d 787 (1995).

The issue in this case is whether the Workers’ Compensation Board had jurisdiction to determine the appropriateness of proposed medical treatment for claimant.[1] The Supreme Court’s decisions in Martin and Niccum held that the Board did have jurisdiction. However, the amendments to the workers’ compensation law made by Oregon Laws 1995, chapter 332, are applicable here because this case was pending before the courts on the effective date of the petition. Volk v. America West Airlines, 135 Or. App. 565, 899 P.2d 746 (1995). Those amendments give the Director of the Department of Consumer and Business Services exclusive authority to decide whether proposed medical treatment is excessive, inappropriate, ineffectual or in violation of applicable rules. Oregon Laws 1995, chapter 332, sections 41 and 50; Newell v. SAIF, 136 Or. App. 280, 902 P.2d 600
(1995). Accordingly, the Board lacked jurisdiction to consider this question. We remand to the Board with instructions to dismiss claimant’s petition to it.

Reversed and remanded with instructions to dismiss petition.

[1] SAIF also assigns error to the Board’s award of attorney fees under ORS 656.386(1). In light of our conclusion that the Board lacked jurisdiction, it is unnecessary to address this question.

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