Dillon v. Whirlpool Corp.

• Decision Date: 21 February 2001
• Citation: 172 Or. App. 484,19 P.3d 951
• Parties: In the Matter of the Compensation of Wayne A. Dillon, Claimant. Wayne A. DILLON, Petitioner, v. WHIRLPOOL CORP., Respondent.
• Court: Oregon Court of Appeals

19 P.3d 951

172 Or. App. 484

In the Matter of the Compensation of Wayne A. Dillon, Claimant.

Wayne A. DILLON, Petitioner, v. WHIRLPOOL CORP., Respondent.

(99-07184, 99-03655; CA A111025)

Court of Appeals of Oregon.

Argued and Submitted January 17, 2001.

Decided February 21, 2001.

Michael Strooband, Eugene, argued the cause for petitioner. With him on the brief was Bischoff, Strooband & Ousey, P.C.

Jerald P. Keene argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LANDAU, P.J.

Claimant seeks review of an order of the Workers' Compensation Board (Board) affirming employer's denial of his claim for injury to his lower back. Claimant argues that the Board erred as a matter of law in failing to defer to the opinion of the treating physician as to the compensability of his claim and as a matter of fact in finding that he had failed to establish compensability. We affirm.

We take the facts from the findings of the Board. Claimant worked for employer as an appliance repair person. He had a prior history of injuries to his lower back. On July 1, 1998, in the course of his employment, claimant bent to pick up some appliance parts and experienced pain from his neck down to his lower back. He continued working for several weeks, but eventually sought chiropractic treatment and filed a report of occupational injury with employer. Claimant was treated by several physicians and ultimately was referred to a neurosurgeon, Dr. Gallo, who diagnosed back and leg pain due to a disc herniation and recommended surgery. Gallo operated on claimant's back, performing an L4-5 fusion.

Meanwhile, Dr. Thompson examined claimant for employer. Thompson obtained an accurate history and concluded that claimant suffered from lumbar and cervical strains and longstanding L4-5 degenerative disc disease. Employer issued a partial denial, accepting the strains but denying the herniated disc.

At hearing, both Gallo and Thompson agreed that claimant suffered from a preexisting condition, that is, L4-5 degenerative disc disease, before the July 1998 injury. The physicians also agreed that the preexisting condition combined with the July 1998 injury to create the current disability or need for treatment. Gallo, however, concluded that the 1998 injury was the major contributing cause of the combined condition, while Thompson concluded that the preexisting condition was the major contributing cause.

The administrative law judge (ALJ), and later the Board, found Gallo's opinion unpersuasive because of certain errors in the medical history on which she relied and concluded that claimant failed to establish the compensability of the claim.

On review, claimant first urges that the Board erred:

"As both the ALJ and the Board failed to either give the treating neurosurgeon deference or provide justification for not giving deference, the Board's order is contrary to law and must be reversed."

In support of his contention, claimant relies on Argonaut Insurance Company v. Mageske, 93 Or.App. 698, 763 P.2d 1202 (1988), which he reads to require the factfinder to give "special deference" to opinions of treating physicians. Employer responds that there is no such rule of law. According to employer, Mageske and other cases do not stand for a rule of law that the opinions of treating physicians must receive greater weight, but rather merely reflect the practices of this court during an era in which it reviewed workers' compensation decisions on a de novo basis. Under current law, employer argues, the findings of the Board must be affirmed on review if they are supported by substantial evidence. We agree with employer.

Before 1987, this court reviewed findings of the Board de novo; indeed, under the statutes applicable during that time, this court could take additional evidence. ORS 656.298(6) (1985). In the context of that de novo review, we noted in a number of decisions a tendency to give greater weight to the opinion of a treating physician in cases in which the medical evidence was divided, because the record revealed that the treating physician had more complete knowledge of the relevant facts. It bears emphasis that we have never announced a rule of law that we, the Board, or any other finder of fact must give greater weight to the opinions of treating physicians under any circumstances.

Mageske illustrates the prior practice. In that case, we reviewed the employer's denial of the claimant's claim for thoracic outlet syndrome (TOS). The claimant's physician, Dr. Silver, concluded that the claimant's condition was the result of a work-related injury, while the employer's physicians testified to the contrary. On de novo review, we concluded that:

"Silver's testimony established that claimant's injury was compensable. Although there was contradictory medical evidence, even the physicians who did not agree with Silver's theory testified that he is a qualified physician held in high regard in the medical community. They also conceded that TOS is an area of

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