391 P.3d 773 (Or. 2017), SC S062420, In re Compensation of Brown

Docket Nº:SC S062420
Citation:391 P.3d 773, 361 Or. 241
Opinion Judge:LANDAU, J.
Party Name:In the Matter of the Compensation of Royce L. Brown, Sr., Claimant. Jesse BROWN, Personal Representative of the Estate of Royce L. Brown, Sr., Petitioner, Respondent on Review, v. SAIF CORPORATION and Harris Transportation Company, LLC, Petitioners on Review
Attorney:Julie Masters, Appellate Counsel, SAIF Corporation, Salem, argued the cause and filed the briefs for petitioners on review. Julene M. Quinn, Portland, argued the cause and filed the brief for respondent on review. Jerald P. Keene, Oregon Workers' Compensation Institute, LLC, Oceanside, filed the ...
Judge Panel:Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices.[**].
Case Date:March 30, 2017
Court:Supreme Court of Oregon
 
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Page 773

391 P.3d 773 (Or. 2017)

361 Or. 241

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

Jesse BROWN, Personal Representative of the Estate of Royce L. Brown, Sr., Petitioner, Respondent on Review,

v.

SAIF CORPORATION and Harris Transportation Company, LLC, Petitioners on Review

SC S062420

Supreme Court of Oregon

March 30, 2017

Argued and submitted May 11, 2015.

WCB No. 11-02146; CA A151889. On review from the Court of Appeals. [*]

Julie Masters, Appellate Counsel, SAIF Corporation, Salem, argued the cause and filed the briefs for petitioners on review.

Julene M. Quinn, Portland, argued the cause and filed the brief for respondent on review.

Jerald P. Keene, Oregon Workers' Compensation Institute, LLC, Oceanside, filed the brief for amici curiae Associated Oregon Industries and Oregon Self Insurers Association.

James S. Coon, Swanson, Thomas, Coon & Newton, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices.[**].

OPINION

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[361 Or. 243] LANDAU, J.

The issue in this workers' compensation case is whether claimant is entitled to benefits for his " combined condition" claim. Under ORS 656.005(7)(a)(B), a " combined condition" exists when an " otherwise compensable injury" combines with a preexisting condition, and the otherwise compensable injury remains the major contributing cause of that combined condition.1 In this case, claimant filed--and his employer's insurer, SAIF Corporation, initially accepted--a claim for a lumbar strain combined with preexisting lumbar disc disease and related conditions. SAIF later denied the combined condition claim on the ground that the lumbar strain had ceased to be the major contributing cause of the combined condition. Claimant objected. He did not contest that his lumbar strain had ceased to be the major contributing cause of his combined condition. Instead, he argued that the otherwise compensable injury was not limited to the lumbar strain that SAIF had accepted as part of his combined condition claim. In claimant's view, an " otherwise compensable injury" within the meaning of ORS 656.005(7)(a)(B) refers not just to the condition that SAIF accepted, but also includes any other conditions not accepted that might have resulted from the same work-related accident that caused the lumbar strain, and that larger group of work-related conditions continues to be the major contributing cause of his combined condition. As a result, claimant contended that an employer cannot close a combined condition claim if any of those non accepted conditions remain the major cause of the combined condition claim.

The Workers' Compensation Board rejected claimant's argument and upheld SAIF's denial of claimant's combined condition claim, concluding that existing precedent defined the " otherwise compensable injury" component of combined conditions to consist of the condition or conditions that the employer has accepted as compensable. The Court of Appeals reversed, acknowledging that its holding was " potentially at odds" with existing precedents from both that [361 Or. 244] court and this one. Brown v. SAIF, 262 Or.App. 640, 653, 325 P.3d 834 (2014). It nevertheless concluded that those precedents were either distinguishable or should be reconsidered. Id. For the reasons that follow, we conclude that the Court of Appeals erred and that the Workers' Compensation Board was correct.

I. FACTS

The relevant facts are not in dispute. Claimant had a history of back problems dating back to 1993, when he was first treated for back problems. He started work for employer as a truck driver in 2002. That same year, he slipped and fell on his buttocks in a restaurant bathroom. A lumbar spine X-ray taken shortly after showed degenerative changes.

In 2006, claimant went to a hospital emergency room complaining of back pain over the preceding month. He was referred to an orthopedist, Dr. Matthew Gambee, who ordered an MRI. The MRI revealed an L4-5 disc protrusion with compression of the L4 nerve root, along with a number of degenerative changes. Dr. Gambee performed an epidural steroid injection, but that provided no sustained relief.

Claimant was referred to a neurosurgeon, Dr. Hoang N. Le, who performed surgery that included a right-side L4-5 decompression, discectomy, and transforaminal lumbar interbody fusion. In April 2007, claimant reported having no back or leg pain, and he was released to full duty. Over the course of

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the next year and a half, claimant performed his regular duties as a truck driver. He experienced some ongoing numbness in two toes of his right foot, and he had occasional minor back pain.

On December 14, 2008, while hanging heavy truck-tire chains under his truck, claimant felt a sudden burning with sharp pain in his lower back that radiated into his right leg. The next day, he went to a hospital emergency room with the same complaints. The treating doctor ordered X-rays of claimant's back, which showed no evidence of acute bone or joint abnormality. So the doctor placed him on modified duty restrictions and prescribed pain medications.

[361 Or. 245] Several days later, claimant saw Dr. Susan Davis, who diagnosed a lumbar strain secondary to the December 14, 2008, work injury. She placed claimant on light duty restriction, prescribed conservative treatment, and referred claimant to physical therapy. Claimant submitted a workers' compensation claim for his lower back pain. SAIF accepted a claim for a disabling " lumbar strain." The notice of acceptance included a notice that, should claimant's condition worsen, he could be entitled to additional benefits for an aggravation claim.

Claimant continued to feel pain in his right hip and down his right leg. Dr. Davis ordered a CT scan of the lumbar spine, which revealed L4-5 right marked foraminal stenosis related to spondylolisthesis and spurring. Dr. Davis referred claimant to an occupational medicine specialist, Dr. Fernando Proano, who referred claimant back to Dr. Le for a neurosurgical consultation.

Meanwhile, Dr. Proano examined claimant in June 2009. He diagnosed a lumbar strain combined with preexisting lumbar disc disease and noted that claimant's work accident had aggravated the preexisting conditions. Dr. Proano again examined claimant in August 2009. He reported that, at that point, claimant's lumbar strain had reached medically stationary status with no impairment findings due to the strain. Based on Dr. Proano's report, SAIF issued a notice of closure that closed the claim for lumbar strain and awarded no permanent disability benefits for the accepted lumbar strain.

Claimant continued to experience pain and returned to Dr. Le, who then performed a " right L4-5 instrumentation removal and redo decompression of the L4 nerve root." But claimant experienced no significant relief from the surgery.

In January 2010, claimant filed a combined condition claim for " lumbar strain combined with lumbar disc disease and spondylolisthesis." SAIF initially resisted, but, after some litigation, it accepted the combined condition claim, specifying that it was accepting, in addition to the originally accepted lumbar strain, a combined condition consisting of " lumbar strain combined with preexisting lumbar disc disease and spondylolisthesis."

[361 Or. 246] Approximately two months later, SAIF ordered an independent medical examination by Dr. Edmund Frank. He opined that the lumbar strain combined with the lumbar disc disease and spondylolisthesis had resolved and that the work-related lumbar strain had ceased to be the major contributing cause of claimant's disability and need for treatment. Dr. Frank concluded that claimant's symptoms related to right L5 radiculopathy secondary to the preexisting spondylolisthesis at L4-5, the fusion-related pseudoarthritis at L4-5, and the scarring of the nerve root, all of which were unrelated to claimant's work-related lumbar strain. SAIF then issued a denial of claimant's combined condition claim as of the date that his lumbar strain had become medically stationary, on the ground that, at that point, the accepted lumbar strain had ceased to be the major contributing cause of claimant's combined condition.

Claimant requested a hearing on the denial of the combined condition claim. At the hearing, SAIF offered the testimony of Dr. Proano that the accepted lumbar strain had ceased to be the major contributing cause of claimant's combined condition. Claimant did not challenge that evidence. Instead, he argued that the original December 14, 2008, work injury resulted not only in lumbar strain, but also in worsening his preexisting conditions. In claimant's view, the combined...

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