C v. Pepperling, 0802264; A141905.

• Decision Date: 01 September 2010
• Docket Number: 0802264; A141905.
• Citation: 237 Or.App. 79,238 P.3d 1013
• Parties: In the Matter of the Compensation of William T. Pepperling, Claimant. SAIF CORPORATION and All Seasons Heating & A/C, Petitioners, v. William T. PEPPERLING, Respondent.
• Court: Oregon Court of Appeals

237 Or.App. 79

238 P.3d 1013

In the Matter of the Compensation of William T. Pepperling, Claimant.SAIF CORPORATION and All Seasons Heating & A/C, Petitioners,

v.William T. PEPPERLING, Respondent.

0802264; A141905.

Court of Appeals of Oregon.

Argued and Submitted June 15, 2010.

Decided Sept. 1, 2010.

Julene M. Quinn argued the cause and filed the brief for petitioners.

Heather Holt, Grants Pass, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

LANDAU, P.J.

SAIF seeks review of an order of the Workers' Compensation Board on reconsideration setting aside SAIF's denial of claimant's new or omitted medical condition claim for an infection of his finger diagnosed as methicillin resistant staphylococcus aureus (MRSA). SAIF asserts that the claim should be analyzed as a consequential condition, to which the major contributing cause standard of proof applies, ORS 656.005(7)(a)(A), and contends that the board erred in applying the material contributing cause standard of proof and in determining that the condition is compensable. We conclude that the board did not err, and we affirm.

Claimant cut his finger on a piece of sheet metal at work. Several days thereafter, he developed an infection that doctors diagnosed as MRSA. Dr. Girod conducted an examination for SAIF and traced the infection to bacteria on claimant's skin at the time of the laceration. He opined that the laceration “provided a portal of entry for the organism to penetrate into the underlying subcutaneous tissues.” In written responses to questions by SAIF, Girod explained:

“[Claimant] probably had the [MRSA] organism on his skin and in his nose. The organism did not cause a problem until he had a laceration which provided a portal of entry for the organism to penetrate into the underlying subcutaneous tissues. The skin is an important protective barrier so that we do not get infected. This barrier is disrupted when there is a laceration.

“ * * * * *

“ * * * The laceration simply provided a portal of entry for infection. The preexisting organism on the skin was able to penetrate into the subcutaneous tissues because of the work injury. It is extremely unlikely that MRSA would be present on sheet metal. * * *

“ * * * * *

“The incident at work broke the protective barrier of skin. This allowed the MRSA which was present on the surface of the skin to enter the subcutaneous tissues. Had the laceration not occurred the infection would not have happened. If he did not have MRSA on his skin, the infection would probably not have happened.”

Girod was asked to explain, within reasonable medical probability, what was the “major cause” of claimant's infection. He stated:

“[Claimant] needed both the presence of MRSA on the skin and the laceration to produce the infection. Since both are required I would conclude the laceration and the colonization state are equally important in producing the infection[.]”

Thus, in Girod's opinion, the MRSA and the laceration were equal causes of claimant's infection.

Claimant filed a claim for the cut, which SAIF accepted. He filed a new or omitted condition claim for the infection, which SAIF denied, asserting that the infection was a consequential condition and that the workplace accident was not its major contributing cause, as required by ORS 656.005(7)(a)(A).

Claimant requested a hearing, asserting that the infection arose directly from the industrial accident, rather than as a consequence of the injury, and that the evidence established that the industrial accident was a material contributing cause of the need for treatment. SAIF did not dispute that the medical evidence established that the industrial accident was a material contributing cause of the need for treatment of the MRSA, but contended that the infection was a consequence of the compensable injury, rather than the industrial accident, and for that reason should be treated as a consequential condition to which the higher, major contributing cause standard of proof applies.

The ALJ and the board agreed with claimant. Citing Fred Meyer, Inc. v. Crompton, 150 Or.App. 531, 946 P.2d 1171 (1997), and Albany General Hospital v. Gasperino, 113 Or.App. 411, 833 P.2d 1292 (1992), the board explained that, when a condition arises directly from the occupational accident, the material contributing cause standard applies. In the board's view, the medical evidence supported the finding that the MRSA infection was a direct result of the occupational accident and not the result of a “subsequent and superseding event.” Specifically, the board relied on portions of Girod's opinion describing the mechanism and origin of the infection.

The board interpreted Girod's explanation to mean that the MRSA bacteria existed on claimant's skin before the injury, that the “work incident laceration,” i.e., the industrial accident, provided a portal of entry, and that the infection arose directly from the industrial accident rather than from the compensable injury it caused. The board concluded for that reason that the record did not establish that the MRSA was a consequential condition. The board held, further, that the compensability of the condition had been established under the material contributing cause standard.

SAIF requested reconsideration, arguing that the board erred in failing to analyze the claim as a consequential condition and in misinterpreting Girod's opinion. The board adhered to its initial decision. In its order on reconsideration, the board emphasized that a consequential condition is not a condition that arises directly, even if belatedly, from an industrial accident. The board stated that,...