Allen v. Saif Corp. (In re Allen)
| Decision Date | 22 June 2016 |
| Docket Number | A158848 |
| Citation | 279 Or.App. 135,377 P.3d 663 |
| Parties | In the Matter of the Compensation of Donald L. Allen, Claimant. Donald L. Allen, Petitioner, v. Saif Corporation and Little Log Logging, Respondents. |
| Court | Oregon Court of Appeals |
Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.
Julie Masters, Eugene, argued the cause and filed the brief for respondents.
Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.
, J.
Claimant seeks review of an order of the Workers' Compensation Board, in which the board concluded that claimant's rotator cuff injury was a “consequential condition” subject to a “major contributing cause” standard of proof. Claimant challenges that conclusion. Because the board applied the correct legal standard and substantial evidence supports the board's order, we affirm.
We take the following facts from the findings in the board's order. ORS 183.482(7)
. Claimant was injured while working as a logger, when a falling log struck him behind his left shoulder. Claimant immediately began receiving treatment for that injury, which included an “AC separation” of his left shoulder, and respondent SAIF Corporation—his employer's workers' compensation insurer—accepted his workers' compensation claim for that injury. Multiple examinations conducted over the course of that treatment revealed no apparent injury to claimant's rotator cuff. Over the next decade, claimant received treatment for various other injuries to his left shoulder, but, again, no rotator cuff issues were identified.
Approximately 12 years after the workplace logging accident, claimant's physician, Dr. Butters, diagnosed him with a “partial thickness tear of [his] left supraspinatus” (i.e. , a rotator cuff tear
in his left shoulder). Butters initially could not determine whether claimant's injury from 12 years before had caused the rotator cuff tear. Butters agreed with a medical summary that SAIF's legal counsel had prepared, which indicated that “he was unable to state that [the logging] injury was the major contributing cause of the rotator cuff tear.” However, he added to the summary that the injuries were “probably [the] same,” because “AC separation[s] often have related rotator cuff” issues. Butters later clarified that notation in another SAIF summary. He explained “that the association between rotator cuff injury or disease and AC separations is a function of the length of time that an AC separation remains untreated and unrepaired.” Because, in part, claimant's AC separation was surgically repaired not long after the logging accident, the rotator cuff tear likely occurred after the AC separation, and, in Butters's opinion, “the AC separation in this case would have [had] minimal if any involvement in causing the rotator cuff” injury. Butters also agreed “that he was unable to say that either the work incident or the accepted conditions [were] the major cause” of the rotator cuff injury.1 Butters's opinion was that claimant's initial injury “contributed to some degree to the occurrence of the” rotator cuff injury, but “less than 50 percent for sure.”
Another physician, Dr. Weeks, examined claimant's injury on SAIF's behalf. Weeks agreed with Butters that the rotator cuff tear
likely occurred after the AC separation. However, Weeks described the tear as “a degenerative phenomenon that would have occurred without the [AC] injury.” He believed that the rotator cuff tear was solely “related to degeneration (age) and normal wear and tear.” Weeks opined that “100 percent of the cause of claimant's partial rotator cuff tear was degenerative.”
Claimant sought compensation for his rotator cuff injury from SAIF. SAIF denied the claim, and claimant sought review before the board, arguing that SAIF had incorrectly characterized the injury as a “consequential condition,” and, therefore, had incorrectly concluded that claimant had not met the relevant standard of proof to show that the injury was compensable.
As relevant here, ORS 656.005(7)(a)
distinguishes between two types of compensable injuries.2 The first type of compensable injury, a direct injury, arises directly from the workplace accident. ORS 656.005(7)(a)
; Albany General Hospital v. Gasperino , 113 Or.App. 411, 415, 833 P.2d 1292 (1992). To recover for a direct injury, the claimant must show that the accident was a “material contributing cause” of that injury. Gasperino , 113 Or.App. at 415, 833 P.2d 1292. The second type of compensable injury is a consequential condition, which arises from the initial, direct injury, rather than from the workplace accident. ORS 656.005(7)(a)(A) ; Gasperino , 113 Or.App. at 415, 833 P.2d 1292. To recover for a consequential condition, the claimant must show that the initial injury was its “major contributing cause”—i.e. , that the initial injury was more than 50 percent responsible for the consequential condition. ORS 656.005(7)(a)(A) ; Gasperino , 113 Or.App. at 415, 833 P.2d 1292. As we explained in Gasperino, “[t]he distinction is between a condition or need for treatment that is caused by the industrial accident , for which the material contributing cause standard * * * applies, and a condition or need for treatment that is caused in turn by the compensable injury .” 113 Or.App. at 415, 833 P.2d 1292 (emphases in original).
An administrative law judge (ALJ) rejected claimant's arguments that the rotator cuff injury was not a consequential condition and upheld SAIF's denial, concluding that claimant had not shown that the AC separation was the major contributing cause of the rotator cuff injury. On review, the board modified some of the ALJ's factual findings and supplemented the ALJ's legal analysis, but otherwise adopted the ALJ's decision.
In applying ORS 656.005(7)(a)
, the board first found that claimant's rotator cuff injury did not arise directly from the logging accident. In support of that finding, the board expressly relied on Butters's opinion that the rotator cuff injury arose after the AC separation and resulted from a combination of factors. The board also noted Weeks's opinion that the rotator cuff tear
arose as a result of natural degenerative processes and after claimant's on-the-job injury. Weeks's view was that claimant would have suffered the rotator cuff injury even if the logging accident had never occurred. Accordingly, the board concluded, the material contributing cause standard of proof did not apply.
Next, the board determined that claimant's injury was a consequential condition. In making that determination, the board again relied on Butters's opinion. The board apparently was persuaded by Butters's opinion that the rotator cuff tear
likely bore some minimal relationship to the AC separation, but did not result directly from it or the underlying accident.3 Thus, the board concluded, in order to establish that the rotator cuff tear was compensable under ORS 656.005(7)(a), claimant was required to prove that the AC separation was the major contributing cause of that injury. Because the board ultimately concluded that “the medical evidence [was] insufficient to meet the requisite ‘major contributing cause’ standard of proof,” the board upheld SAIF's denial of the claim.
Claimant now seeks review of the board's decision, arguing that “the board erred in determining [that] the [rotator cuff tear
] was a consequential condition.” Claimant argues that, in order to have made that determination, the board was required to identify an intervening event between the AC separation and the rotator cuff injury—an “injury or condition that arose from” the AC separation—which, in turn, caused the rotator cuff injury. Claimant further argues that ORS 656.005(7)(a) establishes that the material contributing cause standard is the “default” standard of proof in a workers' compensation claim, and, because the board relied on evidence that was, as a matter of law, insufficient to establish that the rotator cuff injury was a consequential condition, the board erred in deviating from the material contributing cause standard. Claimant's arguments are based on a misreading of Gasperino
and our cases following it. Because the board applied the correct legal standard and substantial evidence supports the board's determination that the rotator cuff injury was a consequential condition, we affirm.
Whether the board applied the correct standard of medical causation is a question of law. Fred Meyer, Inc. v. Crompton , 150 Or.App. 531, 533, 946 P.2d 1171 (1997)
. However, whether the board correctly determined that claimant's injury was a consequential condition involves findings of fact, which we review for substantial evidence. ORS 183.482(8)(a) ; see
English v. Liberty Northwest Ins. Corp. , 271 Or.App. 211, 215, 350 P.3d 470 (2015) (); SAIF v. Pepperling , 237 Or.App. 79, 84–85, 238 P.3d 1013 (2010) (). In reviewing whether the medical evidence established a direct or consequential connection to the accident, “we determine whether the board's evaluation of that evidence was reasonable.” Pepperling , 237 Or.App. at 84–85, 238 P.3d 1013. And, “[i]n reviewing the board's evaluation of [a medical expert's] opinion, we do not substitute our judgment for that of the board[.]” Id. We will revisit the board's factual findings only “when the credible evidence apparently weighs overwhelmingly in favor of one finding and the Board finds the other without giving a persuasive explanation.” Armstrong v. Asten–Hill Co. , 90 Or.App. 200, 206, 752 P.2d 312 (1988).
As explained above, ORS 656.005(7)(a)
distinguishes between a compensable injury, which arises directly out of a workplace accident, and a consequential condition, which, in turn, arises out of the compensable injury. Gasperino , 113 Or.App. at 415, 833 P.2d...
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Arms v. SAIF Corp. (In re Arms), A162874
...separate from the degenerative condition at C5-6 that arose indirectly as a result of treatment of C5-6. See Allen v. SAIF , 279 Or. App. 135, 138, 377 P.3d 663 (2016) (a consequential injury arises from the initial, direct injury, rather than from the work-place accident); SAIF v. Walker ,......