Hunter v. Saif Corp.(In re Comp. of Hunter)

• Decision Date: 07 December 2011
• Docket Number: 0701041; A140887.
• Citation: 246 Or.App. 755,268 P.3d 660
• Parties: In the Matter of the COMPENSATION OF Kavin R. HUNTER, Claimant.Kavin R. Hunter, Petitioner, v. Saif Corporation and Department of Corrections, Respondents.
• Court: Oregon Court of Appeals

246 Or.App. 755

268 P.3d 660

In the Matter of the COMPENSATION OF Kavin R. HUNTER, Claimant.Kavin R. Hunter, Petitioner,

v.Saif Corporation and Department of Corrections, Respondents.

0701041; A140887.

Court of Appeals of Oregon.

Argued and Submitted Dec. 30, 2010.Decided Dec. 7, 2011.

R. Adian Martin, Portland, argued the cause and filed the brief for petitioner.

Julene M. Quinn, Special Assistant Attorney General, argued the cause and filed the brief for respondents.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

DUNCAN, J.

Claimant filed a workers' compensation claim with employer for an occupational disease, specifically, “medial compartment degeneration of the left knee.” Employer denied the claim. Claimant sought a hearing, and an administrative law judge (ALJ) issued an order setting aside employer's denial. Employer appealed the order to the Workers' Compensation Board, and the board issued an order reversing the ALJ's order and reinstating employer's denial. The board's order was based on its conclusion that claimant had failed to prove, as required to establish a compensable occupational disease, that his “employment conditions were the major contributing cause of the disease.” ORS 656.802(2)(a).¹

Claimant seeks judicial review of the board's order, contending that the order is not supported by substantial evidence. See ORS 656.298(7); ORS 183.482(8)(c). We agree and, therefore, reverse and remand for reconsideration.

We begin with the relevant facts. Claimant has a history of injuries to both his right and left knees. The workers' compensation claim at issue in this case relates to a degenerative condition in claimant's left knee. The parties dispute whether that condition was caused, in major part, by claimant's employment conditions. Specifically, they dispute whether it was triggered by a work-related accident in 1977.

In 1977, while working for Montgomery Ward, claimant and a coworker were loading a 300–pound rototiller onto a truck when the coworker tripped, displacing the weight of the rototiller onto claimant. Claimant's right knee buckled, and he heard “a giant pop.” Claimant continued working for two to three hours but eventually stopped because of pain and swelling in his right knee. Claimant went to a medical clinic, and a doctor determined that the patella of claimant's right knee had broken into several pieces. According to claimant, the accident also caused pain in his left knee, but it was “minimal pain” and “not nearly as bad” as the pain in his right knee. Following the accident, claimant sought and received workers' compensation benefits for a right-knee condition. He was released to work approximately two to three months later.

In 1992, while working for Mohawk Paper, claimant suffered a left-knee injury. That injury was followed by surgery, which was performed by Dr. Walton. During the surgery, Walton discovered that “[t]here were still some shreds of [claimant's] anterior cruciate ligament present * * *, but [the ligament] was functionless.” He also discovered degenerative changes in the medial compartment of claimant's knee.

In 2002, 2003, and 2004, while working for employer, claimant suffered additional work-related left knee injuries. The 2004 injury was followed by surgery, during which the surgeon observed “significant degenerative joint disease in [the] medial compartment.”

In June 2005, claimant filed claims with employer for tears of the anterior cruciate ligament, lateral meniscus, and medial meniscus in his left knee related to the 2004 injury. Employer denied the anterior cruciate ligament tear but accepted the lateral and medial meniscus tears.

In July 2005, at employer's request, claimant submitted to an independent medical examination by Dr. James. In a July 2005 report, James diagnosed left knee medial and lateral meniscus tears, along with “[t]raumatic osteoarthritis of the left knee secondary to chronic anterior cruciate ligament laxity, most likely secondary to the injury described in [1977].” At the time of the report, James believed that claimant's left knee was the one that was seriously injured during the 1977 accident at Montgomery Ward.

James later realized that claimant's right knee was the one that was seriously injured in the 1977 accident, but he adhered to his opinion that the 1977 accident caused the degenerative condition in claimant's left knee. In a March 2006 report, James wrote that the 1977 accident “involved both lower extremities” and claimant had “very clearly describ[ed] what happened to his left knee.” James also wrote that it remained his “strong opinion” that the 1977 accident caused the degenerative condition in claimant's left knee. He explained:

“After reconsidering the history given to me by the claimant and in spite of the fact that that the only medical documentation in regard to the injury of 1977 represents the right knee, it is still my strong opinion that the incident in 1977 is the major contributing cause to the chronic anterior cruciate ligament laxity noted in 1992 and the osteoarthritis noted in 1992. Any other conclusion simply does not make good sense medically.”

James concluded:

“[T]he injury incurred at work in 1977 as described to me by the worker did involve the left knee as well as the right lower extremity, and it is the only logical incident historically that could have resulted in the condition of the knee noted at surgery by Dr. Walton in 1992.”

In a July 2006 deposition, James testified that, if claimant had not been injured in 1977, “then I need another date at that approximate time when the injury did occur, because obviously the findings [of degeneration] at surgery in 1992 took several years to develop and were not the result of the injury in April 1992.”

In November 2006, claimant filed an occupational disease claim for medial compartment degeneration of the left knee, the claim at issue in this case. ORS 656.802(1)(a)(C) defines “occupational disease,” in relevant part, as

“any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular employment therein, and which requires medical services or results in disability or death, including

“ * * * * *

“(C) Any series of traumatic events or occurrences which requires medical services or results in physical disability or death.”

To establish the compensability of an occupational disease, a claimant “must prove that employment conditions were the major contributing cause of the disease.” ORS 656.802(2)(a); ORS 656.266(1) (claimant has the burden of proving that the occupational disease is compensable). Under the “last injurious exposure rule” of proof,²

“a claimant [may] prove the compensability of an injury without having to prove the degree, if any, to which exposure to disease-causing conditions at a particular employment actually caused the disease. The claimant need prove only that the disease was caused by employment-related exposure.”Roseburg Forest Products v. Long, 325 Or. 305, 309, 937 P.2d 517 (1997) (citations omitted; emphasis added). Thus, an occupational disease claim may be based on the cumulative effect of all of the claimant's work-related exposure. SAIF v. Henwood, 176 Or.App. 431, 435, 31 P.3d 1096 (2001), rev. den., 333 Or. 463, 42 P.3d 1245 (2002). Prior work injuries may be considered as part of the overall employment conditions. See Kepford v. Weyerhaeuser Co., 77 Or.App. 363, 366, 713 P.2d 625, rev. den., 300 Or. 722, 717 P.2d 630 (1986).

Employer denied claimant's claim, and claimant requested a hearing before an ALJ. At the hearing, claimant testified that, during the 1977 incident at Montgomery Ward, his right knee was badly injured, and he also felt pain in his left knee, albeit “nothing compared to what was [in] the right leg.”

Claimant had also testified about the 1977 incident at a prior hearing, a transcript of which the ALJ received into evidence. At the prior hearing, claimant testified, on cross-examination by employer's counsel, that the left knee injury that he suffered in the 1977 accident was the only left knee injury he suffered before 1992:

“[EMPLOYER'S COUNSEL:] [O]ther than the Montgomery Ward's 1977 claim for injury to your knee, of some extent, can you think of any other prior left-knee injuries that you've had?

“[CLAIMANT:] Well, absolutely not. I received no medical attention, nothing, regarding my left knee, other than all the ones that are reported. And—

“[EMPLOYER'S COUNSEL:] So it would just be the 1977 claim?

“[CLAIMANT:] Would be the only possible—if there was a possible tie, that would be the only one.”

The ALJ set aside employer's denial. Employer appealed to the board, and the board reversed, holding that claimant had failed to establish that the degenerative condition in his left knee was caused by a work-related injury. In its initial “Order on Review,” the board explained its reasoning as follows:

“Claimant's theory of compensability for this claim relies in part on Dr. James's belief that he had a work-related injury in 1977, which caused the severe degenerative changes, including preexisting medial compartment disease, which were found during the 1992 surgery. However, there are no contemporaneous medical records indicating that claimant injured his left knee in 1977 or received any treatment for a left knee condition as a result of that incident. Claimant testified that the 1977 injury caused left knee pain, but nothing compared to what was in the right leg. At a prior hearing, claimant said that there was ‘minimal pain’ in the left knee after the 1977 incident.

“In [ Richard G. Pruitt, 58 Van Natta 2635 (2006) ³,] relied on by claimant, the 1976 left knee injury, which contributed to the left knee condition, was clearly work-related. Here, however, we agree with [employer] that the preponderance of...