Griffin v. Dish Network Servs. (In re Comp. of Griffin)
| Decision Date | 27 February 2019 |
| Docket Number | A160696 |
| Citation | 296 Or.App. 233,437 P.3d 252 |
| Parties | In the MATTER OF the COMPENSATION OF Jason C. GRIFFIN, Claimant. Jason C. Griffin, Petitioner, v. Dish Network Services, Respondent. |
| Court | Oregon Court of Appeals |
Donald M. Hooton argued the cause and filed the briefs for petitioner.
Jason A. McClain argued the cause for respondent. Also on the brief was Thomas P. Busch, Portland.
Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.
In this workers’ compensation case, claimant seeks review of an order of the Workers’ Compensation Board on reconsideration upholding a notice of closure that awarded claimant temporary disability benefits but no benefits for permanent impairment or work disability. We conclude that the board’s order is supported by substantial evidence and that the board did not err as a matter of law in upholding the notice of closure. ORS 656.298 ; ORS 183.482(7), (8).
We summarize the board’s findings, which are largely undisputed and are supported by substantial evidence. Claimant has a lengthy pre-employment history of low back problems, including diagnoses of degenerative disc disease
, disc herniations and protrusions at L4-5 and L5-S1, pain radiating into his legs, and surgery at L4-5.
Claimant installs satellite dishes for employer and, on February 27, 2011, while adjusting his position to support a satellite dish, claimant twisted his back and felt pain. He filed a claim, in which he described the injury as "low back strain." Employer denied the claim for the reason that the "primary contributing cause" of claimant’s need for treatment or disability was his preexisting back condition, asserting, essentially, a "combined condition defense."
We summarize briefly the relevant legal context for the issue raised on review. Ordinarily, it is the claimant’s burden to prove the compensability of a claim. ORS 656.266(1) (). When a "combined condition" is asserted, either by the claimant or by the employer, special burdens of proof apply in determining the initial compensability of the claim. If the claimant seeks to establish the compensability of a claim as a combined condition in the first instance, then it is the claimant’s burden to establish the existence of an "otherwise compensable condition" that has combined with a preexisting condition "to cause or prolong disability or a need for treatment." ORS 656.005(7)(a)(B). If the claimant meets that initial burden and the employer disputes the compensability of the combined condition, then the employer must establish that the "otherwise compensable condition" is not the major contributing cause of the claimant’s disability or need for treatment. McDermott v. SAIF , 286 Or. App. 406, 419, 398 P.3d 964 (2017) ; Keystone RV Co.-Thor Industries, Inc. v. Erickson , 277 Or. App. 631, 373 P.3d 1122 (2016). If the "combined condition" is raised by the employer as a defense to the claim, then the claimant bears the initial burden to establish an "otherwise compensable injury" by proof that a work injury is a material contributing cause of the worker’s disability or need for treatment, ORS 656.005(7)(a), and the employer bears the burden to prove that a combined condition exists and that the "otherwise compensable condition" is not the major contributing cause of the claimant’s disability or need for treatment. ORS 656.266(2)(a).1
Claimant requested a hearing on employer’s denial of the claim for "low back strain," and the parties agreed that the claim involved a "combined condition." For that reason, the ALJ did not make a determination as to the existence of a combined condition, the nature of the combined condition, or which of claimant’s several preexisting conditions had combined with the work injury. The ALJ found that claimant had established an "otherwise compensable injury" (i.e. , that claimant’s work injury was a material contributing cause of his need for treatment or disability), ORS 656.005(7)(a), and that employer had failed to establish that claimant’s preexisting condition was the major contributing cause of claimant’s need for treatment and disability. ORS 656.266(2). The ALJ therefore determined that claimant had established the compensability of his claim for low back strain.
Employer appealed the ALJ’s order. In its order of October 10, 2012, the board noted that the parties did not challenge the ALJ’s finding that claimant had a "combined condition." The board agreed with the ALJ’s findings that claimant had established an "otherwise compensable injury" and that employer had failed to show that claimant’s preexisting back condition was the major contributing cause of claimant’s need for treatment, and set aside the denial. Thus, the board affirmed the ALJ’s order overturning the denial. Thereafter, on December 21, 2012, employer accepted an injury claim for "lumbar strain." Claimant did not challenge the notice of acceptance or seek acceptance of a "combined condition" as an omitted condition. See ORS 656.262(6)(d) ; ORS 656.267(1).
In March 2013, Dr. Ward, claimant’s treating physician, determined that claimant’s lumbar strain
had resolved without permanent impairment or work restriction. Ward determined that claimant was medically stationary and could continue to work at his regular job and receive medical treatment as needed. In an updated notice of claim acceptance at closure, employer again identified the accepted condition as "lumbar strain."
Once again, claimant did not challenge the notice of acceptance or seek acceptance of a "combined condition" as an omitted condition. See ORS 656.262(6)(d) ; ORS 656.267(1). Employer closed the claim in June 2013 with an award of temporary disability benefits but no benefits for permanent disability.
Claimant requested reconsideration of the notice of closure and an updated opinion from Ward. In response to claimant’s counsel’s representation to Ward that the accepted condition as a result of the board’s October 10, 2012, order was "lumbar strain
combined with instability of L4-5," Ward opined that the accepted condition was medically stationary, as were claimant’s "preexisting low back pathologies, including L4-5 instability," without physical permanent impairment or work restrictions. A medical arbiter panel performed an examination and observed a range of motion deficit that the panel concluded was attributable to claimant’s underlying degenerative disc disease and the residual effects of claimant’s non-work-related lumbar surgery. The panel determined that 90 percent of claimant’s impairment was due to degenerative disc disease, ten percent was attributable to the residual effects of the lumbar surgery, and zero percent was attributable to the accepted lumbar strain.
Before the board, claimant contended that he should receive benefits for permanent disability associated with the identified loss of range of motion. Citing Forest Products v. Lund , 245 Or. App. 65, 261 P.3d 1265 (2011), claimant asserted that the October 10, 2012, board order was preclusive as to the compensability of a combined condition and that employer was therefore required and must be deemed to have accepted a combined condition. Claimant further argued that because, before claim closure, employer had not denied claimant’s combined condition (which claimant now asserted was a lumbar strain
combined with degenerative disc disease, disc protrusions at L4-5 and L5-6, prior discectomy at L4-5, and residual instability arising out of the surgical procedures), claimant was entitled to an unapportioned permanent impairment value for the loss of range of motion identified by the medical arbiter panel, as well as work disability.
The board rejected claimant’s contention that Lund was controlling and precluded employer from limiting its acceptance to a strain. In Lund , the board concluded that a previous final order of the board had determined that the new/omitted medical condition claim for a right shoulder rotator cuff tear
was compensable as a combined condition with the claimant’s preexisting osteoarthritis. Despite that, the insurance carrier had subsequently accepted only a right shoulder strain and rotator cuff tear, not a combined condition, and the notice of closure had apportioned the claimant’s impairment findings accordingly. The claimant appealed, asserting that he was entitled to a permanent disability award for a combined condition. The board and we agreed, holding that, in light of the prior litigation, the carrier’s acceptance was "properly understood" as acceptance of a combined condition. Id . at 72, 261 P.3d 1265.
Here, in contrast, the board interpreted its October 10, 2012, order differently. The board explained that the order had...
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