Brown v. Saif Corp. (In re Comp. of Brown)

• Decision Date: 07 May 2014
• Docket Number: 1102146,A151889.
• Citation: 262 Or.App. 640,325 P.3d 834
• Parties: In the Matter of the Compensation of Royce L. Brown, Sr., Claimant. Royce L. BROWN, Sr., Petitioner, v. SAIF CORPORATION and Harris Transportation Company, LLC, Respondents.
• Court: Oregon Court of Appeals

262 Or.App. 640

325 P.3d 834

In the Matter of the Compensation of Royce L. Brown, Sr., Claimant.

Royce L. BROWN, Sr., Petitioner,

v.SAIF CORPORATION and Harris Transportation Company, LLC, Respondents.

1102146; A151889.

Court of Appeals of Oregon.

Argued and Submitted March 7, 2014.

Decided May 7, 2014.

Julene M. Quinn argued the cause for petitioner. With her on the briefs was Kryger Alexander Carlson PC.

Julie Masters argued the cause and filed the brief for respondents.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

Claimant seeks review of an order of the Workers' Compensation Board upholding the denial of his combined-condition claim based on the board's determination that SAIF Corporation (SAIF) had established that claimant's accepted lumbar strain is no longer the major contributing cause of his combined condition. The facts are not in dispute. We review for errors of law, ORS 656.298(7), ORS 183.482(7), (8), and reverse and remand for reconsideration.

We take the facts from the administrative law judge's (ALJ's) findings of fact, which the board adopted and which SAIF does not challenge. Claimant has been working for employer as a truck driver since March 2002. In 1993, claimant underwent an MRI of his lumbar spine when he experienced back pain after falling at a friend's house. In 2002, he slipped and fell on his buttocks in a restaurant bathroom. A lumbar x-ray showed degenerative changes. Nevertheless, the medical records show no treatment between 2002 and July 2006, when claimant appeared in the emergency room with complaints of a one-month history of worsening pain that radiated down his right leg to his calf.

In 2006, claimant received a referral to an orthopedist, Dr. Matthew Gambee. After an updated MRI revealed an L4–5 disc protrusion with compression of the L4 nerve root along with a plethora of degenerative changes, Gambee performed an epidural steroid injection, which provided no relief. A referral to a neurosurgeon, Dr. Hoang N. Le, followed. Le performed a surgery that included a right-sided L4–5 decompression, discectomy, and transforaminal lumbar interbody fusion. In April 2007, claimant reported having no back or leg pain and was released to full duty.

From April 2007 through the date of the work injury, claimant performed his regular duties as a truck driver. He had an ongoing symptom of numbness in the middle two toes of his right foot. He had occasional minor back pain “that most people get with a lot of lifting.”

The claim at issue involves an accident on December 14, 2008. After hanging heavy truck-tire chains under his truck, claimant experienced a sudden burning with sharp pain in his lower back that radiated into his right leg. On the following day, he made his way to the emergency room, making those same complaints. X-rays of his back showed no evidence of acute bone or joint abnormality so the doctor placed him on modified duty restrictions and prescribed pain medications.

Later, claimant saw Dr. Susan Davis who diagnosed a lumbar strain secondary to the December 14, 2008, work injury. Claimant reported no improvement with physical therapy. His symptoms of back pain with aching into his right hip and down the right leg continued. A scan revealed L4–5 right marked foraminal stenosis related to spondylolisthesis and spurring. Ultimately, claimant received a referral back to his neurosurgeon, Le, who ordered an MRI that revealed an alignment abnormality, bony spurring around the fusion, and a narrowing of the right L4 neural foramen. Le referred claimant back to Gambee for steroid injections, which provided no relief. Le then recommended removal of certain instrumentation in claimant's back and a new surgery for the decompression of the right L4–5 nerve root.

SAIF accepted a claim for a disabling “lumbar strain.” SAIF made arrangements for a medical examination to close the claim. Dr. Fernando Proano completed a closing examination on August 18, 2009; he declared claimant “medically stationary” and announced that there were no impairment findingsdue to the “accepted condition.” SAIF issued a notice of closure that awarded no permanent-disability benefits for the accepted lumbar strain.

In October 2009, Le performed a right L4–5 surgery removing the instrumentation and decompressing the L4 nerve root. Claimant obtained no significant relief from the surgery and continued to experience low back pain with symptoms radiating into his right leg.

In January 2010, claimant requested acceptance of “lumbar strain combined with lumbar disc disease and spondylolisthesis.” SAIF issued a denial of the combined-condition claim, and claimant requested a hearing. An ALJ heard the case and issued an opinion and order that set aside the denial. SAIF issued a modified notice of acceptance of “lumbar strain combined with preexisting lumbar disc disease and preexisting spondylolisthesis.”

Less than two months later, SAIF sent claimant to a medical examination with Dr. Edmund Frank, who opined that the “lumbar strain combined with lumbar disc disease and spondylolisthesis” had resolved by August 18, 2009, and that the work injury had ceased to be the major contributing cause of claimant's disability and need for treatment. Frank further opined that claimant's symptoms related to right L5 radiculopathy secondary to the preexisting spondylolisthesis at L4–5, the fusion-related pseudoarthrosis at L4–5, and the scarring of the nerve root were unrelated to the work injury. In April 2011, SAIF issued a denial of claimant's “current combined condition,” stating that his “accepted injury has ceased to be the major contributing cause” of the “lumbar strain combined with the preexisting disc disease and preexisting spondylolisthesis, on or after August 19, 2009.”

Claimant requested a hearing. His attorney solicited a report from Proano, who had prepared the report for the first notice of closure, and who wrote that claimant was still being treated for the combined condition of “lumbar strain combined with preexisting lumbar disease and preexisting spondylolisthesis.” Proano explained that, having now taken claimant's preexisting condition into account, he had changed his opinion and no longer believed that claimant was medically stationary. Proano opined that claimant's current symptoms represented a pathological worsening of his preexisting conditions and had resulted from the work injury. Proano explained that the spinal loading forces involved in the work injury were consistent with a pathological worsening of the preexisting lumbar disease as well as claimant's right L5 radiculopathy.

SAIF's attorney solicited a report from Frank, who opined that the lumbar strain was no longer the major contributing cause of claimant's disability or need for treatment for the combined condition. He reasoned that Proano's earlier declaration that the lumbar strain had become medically stationary without permanent impairment indicated a change in circumstances, because the strain had resolved and was no longer a significant contributing factor to claimant's disability and need for treatment. He further opined that the 2006 lumbar fusion was unsuccessful and resulted in a large bony spur and scarring of the L4 and L5 nerve roots. He noted that claimant had residual pain and numbness following the 2006 fusion and that claimant was not completely symptom-free before the 2008 work injury.

In a post-hearing deposition, Proano clarified that his report provided after the August 18, 2009, closing examination had addressed the lumbar strain alone and not the entire combined condition. He stated his current opinion that the combined condition had not resolved and that he was still treating that condition. Proano expressed the view that the December 14, 2008, work injury was “driving treatment for [claimant's] preexisting conditions,” which had been accepted as part of the combined condition. He opined that the work injury had caused a pathological worsening of the preexisting conditions. He reasoned that, as a result of the December 2008 work injury, claimant had experienced a significant change in his condition which had worsened from a mild lumbar radiculopathy or radiculitis to significant lumbar radiculopathy and a foot drop. He further opined that the December 14, 2008, work injury involved a sudden loading force on claimant's spine due to lifting heavy chains in an awkward manner, resulting in an acute narrowing of the already narrowed foramen and injury to the nerve root, which in turn resulted in weakness and pain in the right lower extremity.

In an order upholding SAIF's denial of the combined condition, the ALJ reasoned that it was SAIF's burden to prove “that the lumbar strain' component” of the accepted combined condition was no longer the major contributing cause of [claimant's] disability or need for treatment.” The ALJ accepted SAIF's argument that it was the claimant's obligation to demand acceptance of a worsening of the underlying degenerative changes. Absent an acceptance of those specific degenerative conditions, the ALJ reasoned that resolution of the accepted strain amounted to resolution of the work-related injury.

Claimant timely challenged the ALJ's order, and the board affirmed, reasoning that this court's decision in Reid v. SAIF, 241 Or.App. 496, 250 P.3d 444,rev. den.,351 Or. 216, 262 P.3d 402 (2011), supported its holding.

In this petition for judicial review, claimant argues that, in upholding SAIF's denial of his combined-condition claim based on proof that the accepted lumbar strain had ceased to be the major contributing cause of his disability or need for treatment, the ALJ and the board have improperly conflated the statutory terms “otherwise compensable injury” and “accepted condition.” He contends that, in order to deny the combined condition, SAIF was required to prove that his “accidental injury” was no longer the major contributing cause...