Compensation of Grable, Matter of

• Jurisdiction: Oregon
• Parties: In the Matter of the COMPENSATION OF Michael GRABLE, Claimant. GRABLE, Petitioner, v. WEYERHAEUSER COMPANY, Respondent. CA 16671; SC 27174.
• Citation: Compensation of Grable, Matter of, 631 P.2d 768, 291 Or. 387 (Or. 1981)
• Court: Oregon Supreme Court
• Decision Date: 28 July 1981

Page 768

631 P.2d 768

291 Or. 387

In the Matter of the COMPENSATION OF Michael GRABLE, Claimant GRABLE, Petitioner, v. WEYERHAEUSER COMPANY, Respondent.

CA 16671; SC 27174.

Supreme Court of Oregon.

Argued and Submitted Nov. 3, 1980.

Decided July 28, 1981.

Thomas A. Huntsberger, of Ackerman & DeWenter, Springfield, argued the cause and filed the briefs, for petitioner.

J. W. McCracken, Jr., Eugene, argued the cause and filed a brief, for respondent.

Before TONGUE, P. J., and HOWELL ^*, LENT, LINDE, PETERSON and TANZER, JJ.

LENT, Justice.

The issue in this workers' compensation case is whether the employer is required to pay benefits to a claimant for worsening of the worker's condition where the worsening is the result of both an original compensable back injury and a subsequent off-the-job back injury.

Background

The claimant suffered a back injury on February 21, 1978, while lifting heavy blocks of wood in his employer's mill. His claim under the workers' compensation law was accepted by the employer. He was released by his treating doctor for light work on April 3, 1978, and for full duty on May 8, 1978. That doctor was of the opinion at that time that claimant had sustained some mild permanent partial disability in his low back as a result of the accident of February 21, 1978. ¹

From April to October of 1978 claimant was employed at the same mill. He presented evidence by way of his own testimony and that of other witnesses that he continued to have an annoying, dull ache in his low back and hips and that he complained of that pain once or twice a week both on and off the job. On October 28, 1978, while on the roof of his home and pulling to the roof a steel pipe, claimant felt a sharp pain in the part of his back injured in February. Claimant did not return to work and on January 22, 1979, sent a letter, through his lawyer, to the employer asking that his claim be "reopened" for payment of medical expenses and compensation for temporary total disability from the date of the incident on the roof. ² The employer promptly denied "claim re-opening."

The claimant requested a hearing, and the referee wrote that the matter was before him on appeal from a denial of claimant's request for "reopening his claim from a low back injury on February 21, 1978. * * * The issue is compensability." Following the hearing the referee issued his written Opinion and Order. That writing contains the melange of findings and discussion of the evidence which is apparently customarily issued by referees in workers' compensation cases. It is truly difficult to determine what are the findings of fact, as distinguished from a discussion of the evidence. ³ In that portion of his writing entitled "OPINION," the referee stated:

"The rule generally applied is that once a work connected character of an injury has been established, the subsequent progression of that condition remains compensable as long as the worsening is not shown to have been produced by an independent non-industrial cause. Claimant suffered a low back injury in February 1978, was able to work without apparent difficulty for almost six months until October 28, 1978, when lifting a pipe onto a roof he became incapacitated.

"In successive injury cases, liability is placed on the carrier covering the risk at the time of the most recent injury which bears a causal relationship to the disability. If the second injury merely takes the form of a recurrence of the first, and if the second injury does not contribute even slightly to the causation of the disabling condition, the insurer on the risk at the time of the original injury remains liable for the second. If the second injury contributes independently to the injury, the second insurer is solely liable even if the injury would have been much less severe in the absence of the prior condition and even if the prior condition contributed to the major part of the final condition. See in this connection, Smith v. Ed's Pancake House, 27 Or.App. 361 (556 P.2d 158) (1976). I find this theory controlling. It cannot be said that the October injury was a recurrence of the February injury although medical evidence indicates that the location and severity of the pain were identical. The October incident precipitated the need for further medical treatment and is not the responsibility of the employer." (Emphasis added.)

He then ordered that the employer's denial of the request to reopen be affirmed. On review, the Workers' Compensation Board affirmed and adopted the referee's Opinion and Order.

The Court of Appeals affirmed without opinion. In the Matter of the Compensation of Grable v. Weyerhaeuser Company 47 Or.App. 1, 614 P.2d 635 (1980). We allowed claimant's petition for review, ORS 2.520, 289 Or. 731 (1980), to consider whether the Court of Appeals has adopted conflicting rules of law for the disposition of successive injury cases and, more particularly, whether this case should have been disposed of on the authority of Smith v. Ed's Pancake House, 27 Or.App. 361, 556 P.2d 158 (1976). ⁴

Has the Court of Appeals Adopted Conflicting Rules of Law in Various Successive Injury Cases ?

Claimant urges that one rule of law has been established in a line of cases culminating in Standley v. SAIF, 8 Or.App. 429, 495 P.2d 283 (1972), that where there is a worsening of the worker's condition resulting from a compensable injury following an off-the-job activity, and the worsening requires medical services or results in disability, the claimant makes out a compensable claim for benefits for that worsening if the claimant establishes that the prior compensable injury was a "material contributing cause" of the worsened condition. Claimant interprets the Court of Appeals decision in Christensen v. SAIF, 27 Or.App. 595, 557 P.2d 48 (1976), as standing for a conflicting rule that a claimant has the burden to establish that the worsening of the condition resulting from the prior compensable injury was not the result of an independent nonindustrial cause.

The employer seems impliedly to agree as to the state of the law for, on oral argument before this court, the employer urged that the issue presented is whether the rule in Christensen v. SAIF, supra, is to be adopted by this court.

Claimant contends that the first rule is established by our decisions in Olson v. State Ind. Acc. Com., 222 Or. 407, 352 P.2d 1096 (1960), and Lorentzen v. Compensation Department, 251 Or. 92, 444 P.2d 946 (1968), and the Court of Appeals' decisions in Lemons v. Compensation Department, 2 Or.App. 128, 467 P.2d 128 (1970), and Standley v. SAIF, 8 Or.App. 429, 495 P.2d 283 (1972).

Lemons v. Compensation Department, supra, was a case in which the worker had a considerable history of low back troubles prior to September, 1966, when he had an onset of pain in his low back and left leg while lifting a tire at work. His claim was accepted for medical benefits only because he did not lose time from work. He consulted a neurosurgeon, who diagnosed nerve root compression resulting from a herniated intervertebral disc between the fourth and fifth lumbar vertebrae and prescribed conservative treatment. The claim was closed in November, 1966. In May, 1967, the worker had an off-the-job fall with immediate pain in the low back and leg and was hospitalized. The neurosurgeon performed surgery at the site of the herniated disc he had theretofore diagnosed. The Court of Appeals posed the issue as follows:

"(This case) involves the question of whether there was causal connection between an accident-aggravated low back condition and a subsequent operation to repair an intervertebral disc in the low back where a fall intervened between the aggravation accident and the operation."

2 Or.App. at 129, 467 P.2d 128. The Court of Appeals held that in order to prevail the claimant had to show that the accident of September, 1966, "was a material contributing cause to the plaintiff's condition which necessitated surgery" (emphasis added) and that the accident need not be shown to be the sole cause. For that holding, the Court of Appeals cited this court's decisions in Lorentzen v. Compensation Department and Olson v. State Ind. Acc. Com., both supra.

In Standley v. SAIF, supra, the worker sustained a compensable low back injury in June, 1966. He had a congenital defect not specified in the reported decision and had sustained low back injury in other accidents unrelated to his employment occurring both before and after the on-the-job injury of June, 1966. In 1970 his back condition required surgery, and he claimed that the workers' compensation insurance carrier should pay for the surgery and other attendant benefits. That claim was resisted. The Court of Appeals quoted the holding of Lemons v. Compensation Department, supra, that the worker need only show that the on-the-job accident was a "material contributing cause" of the need for surgery, and applied the holding to the case as follows:

"Here not only was the causal connection between the covered injury of June 1966 and claimant's surgery in 1970 shown by expert medical evidence, but the state produced no contrary expert medical evidence, and by the appeal in effect challenges the medical opinion of its own designated expert.

"We agree with the circuit judge and find that the claimant has established that the accident of June 1966 was a material contributing cause to the 1970 condition resulting in the required surgery." (Emphasis added)

8 Or.App. at 433, 495 P.2d 283.

The rule to be drawn from Lemons and Standley is that where a worker suffers an on-the-job injury and thereafter the condition resulting from that injury is worsened by an off-the-job injury, the compensation insurance carrier will be required to afford workers' compensation benefits for the worsened condition if the worker shows that the on-the-job injury is a material contributing cause of the worsened condition.

The Lemons court appeared to...