In re Comp. of Simi, WCB Case No. 15-04870

• Decision Date: 25 June 2021
• Docket Number: WCB Case No. 15-04870
• Citation: 73 Van Natta 526
• Parties: In the Matter of the Compensation of RANDY G. SIMI, Claimant
• Court: Oregon Workers' Compensation Division

73 Van Natta 526

In the Matter of the Compensation of RANDY G. SIMI, Claimant

WCB Case No. 15-04870

Oregon Workers' Compensation Division

June 25, 2021

ORDER ON REMAND

Ronald A Fontana PC, Claimant Attorneys

Sather Byerly Holloway - SBH Legal, Defense Attorneys

Reviewing Panel: Members Ousey and Woodford.¹

This case is before the Board on remand from the Court of Appeals.Simi v. LTI Inc. - Lyden, Inc., 300 Or App 258(2019).The court has reversed the Board's order, Randy G. Simi, 69 Van Natta 364(2017), that affirmed an Administrative Law Judge's (ALJ's) order that upheld the self-insured employer's denial of claimant's occupational disease claim for right shoulder conditions.In reaching its decision, the Board had found Dr. Butters's opinion that several work-related injuries contributed to claimant's right shoulder conditions to be insufficient to demonstrate that his "general work activities" contributed to the conditions.Reasoning that work-related injuries are themselves "employment conditions" under ORS 656.802(2)(a) that may establish the compensability of an occupational disease claim, the court concluded that the Board erred in determining that claimant could establish the compensability of his occupational disease claim only through proof that his "general work activities" contributed to his conditions.Determining that the record includes medical evidence from which a factfinder could find that claimant's cumulative work-related injuries caused a separate medical condition requiring surgery, the court held that the Board did not make findings directed at determining whether claimant's condition requiring surgery was a condition separate and distinct from the discrete injuries — a condition that developed gradually as a result of the cumulative effect of the work-related injuries.Accordingly, the court remanded for reconsideration.

FINDINGS OF FACT

We continue to adopt the ALJ's "Findings of Fact" with the following supplementation and summary.

Claimant worked for many years as a truck driver.(Tr. 12).In 2001 and 2004, while working for different employers, claimant suffered work-related injuries to his shoulder, including a right shoulder labral tear and a partial thickness rotator cuff tear.(Exs. 2, 7, 8, 22).In October 2004, claimant had surgery related to those conditions.(Ex. 20).

Claimant worked for the employer, who is the subject of this claim, as a milk truck driver from 2005 through May 2014.(Tr. 11).Claimant experienced three shoulder injuries while working for the employer.In 2010, he slipped and fell, injuring his shoulder, and the employer accepted a claim for a right rotator cuff tear, for which claimant had surgery.(Exs. 29, 40).In December 2013, claimant slipped on a ladder and briefly hung by his arms.(Ex. 46).Claimant submitted an injury claim, which the employer denied as untimely.(Exs. 47, 49).In February 2014, claimant experienced increased shoulder pain and weakness when, over three snowy days, he repeatedly installed and removed heavy tire chains.(Exs. 45, 46;Tr. 28-30).When the pain became intolerable six weeks later, claimant sought medical treatment and submitted an injury claim, which the employer denied.(Exs. 45, 46;Tr. 28, 58).

In 2015, claimant experienced increased shoulder pain and sought treatment from Dr. Butters.(Ex. 61).Dr. Butters diagnosed a recurrent right rotator cuff tear and biceps tendon dislocation, and performed arthroscopic surgery.(Exs. 60-63).Claimant filed the occupational disease claim at issue here, seeking compensation for his right shoulder conditions (right supraspinatus tear, partial tear of the right subscapularis insertion site, and dislocation of the right biceps tendon).(Ex. 68).

On October 12, 2015, the employer denied claimant's occupational disease claim.(Ex. 71-1).

Dr. Butters initially opined that claimant's occupational exposure, including his multiple on the job events, was the major contributing cause of his right shoulder conditions and need for surgery.(Ex. 66).But, based on a revised description of claimant's work activities, he later concluded that injury to the right shoulder was the major contributing cause of claimant's right shoulder conditions and need for treatment, rather than occupational exposures and work-related activities.In so concluding, he stated that he did not consider the conditions to be the result of an "occupational disease."(Exs. 75B, 76-2-3).

In a March 21, 2016, deposition, Dr. Butters clarified that his understanding of an occupational disease was a disease caused by "what this worker does everyday" over the years.(Ex. 84-22).He reiterated that, based on that understanding, he did not consider claimant's conditions to be occupational diseases.(Ex. 84-21).Rather, he opined that, "in this case, with what he does, with his injuries, * * * the injury or series of injuries" was the major contributing cause of the conditions and need for treatment.(Ex. 84-24).

CONCLUSIONS OF LAW AND OPINION

The ALJ concluded that claimant's occupational disease claim was not compensable.In doing so, the ALJ reasoned that the record did not demonstrate that claimant's "general work activities" over time contributed to the right shoulder conditions.Claimant requested Board review of the ALJ's order.

Citing its previous decisions concluding that the compensability of an occupational disease arising from a series of work-related injuries required proof that the claimant's "general work activities" contributed to the occupational disease, the Board affirmed.Simi, 69 Van Natta at 366.Applying that standard, the Board reasoned that Dr. Butters's opinion that several work-related injuries contributed to the right shoulder conditions was insufficient to demonstrate that claimant's "general work activities" contributed to those conditions.Id.

Claimant sought judicial review of the Board's order.The court concluded that ORS 656.802(1)(a)(C) requires that "employment conditions" are the major contributing cause of an occupational disease.Simi, 300 Or App at 263.Reasoning that work-related injuries themselves constitute "employment conditions,"the court determined that the Board erred in also requiring a contribution from "general work activities."Id. at 264.The court further stated that an occupational disease can be established by medical evidence that discrete work-related injuries have caused a separate condition, arising over time as a result of the cumulative effect of those injuries.Id.Noting that the record includes medical evidence from which the Board could determine that claimant's cumulative injuries caused a separate medical condition requiring surgery, the court remanded for reconsideration.Id.

Having received the parties supplemental briefing on remand, we proceed with our reconsideration.

To establish a compensable occupational disease, claimant must prove that employment conditions were the major contributing cause of the disease.ORS 656.266(1);ORS 656.802(2)(a).As the court explained, a series of work-related injuries are "employment conditions" for purposes of an "occupational disease" analysis.Simi, 300 Or App at 264.Thus, an occupational disease can be established by medical evidence that discrete work-related injuries were the major contributing cause of a separate condition, arising over time as a result of the cumulative effect of those injuries.²Id.

This claim presents a complex medical question that must be resolved by expert medical opinion.SeeUris v. Comp. Dep't, 247 Or 420, 424-26(1967);Barnett v. SAIF, 122 Or App 279, 282(1993);Matthew C. Aufmuth, 62 Van Natta 1823, 1825(2010).More weight is given to those medical opinions that are well reasoned and based on complete information.SeeSomers v. SAIF, 77 Or App 259, 263(1986);Linda E. Patton, 60 Van Natta 579, 582(2008).

Based on the following reasoning, we find that Dr. Butters's opinion persuasively establishes the compensability of claimant's occupational disease claim.³

Dr. Butters opined that the "injury or series of injuries" was the major contributing cause of the right shoulder pathology he treated in 2015.In doing so, he explained that the 2001, 2004, 2010, and 2013 work injuries each contributed to the claimed right shoulder pathology.Concerning the 2001 work injury (resulting in a partial right rotator cuff tear), Dr. Butters acknowledged that it was "difficultto tell" whether that injury contributed to the right shoulder pathology, but he ultimately explained: "I think it did contribute, and the natural history of rotator cuff tears is to start often as a degenerative process or as a partial thickness tear and then progress on to a full thickness tear either with just the passage of time or with further injuries."(Ex. 84-42).Regarding the 2004 injury (resulting in a partial right rotator cuff tear and surgery), Dr. Butters initially stated that he could not comment on whether the injury contributed to the 2015 right shoulder pathology because he had not treated the claimant at the time.(Ex. 84-7).However, he subsequently clarified that claimant's treating surgeon in 2004 felt that the 2004 work injury was the major cause of the need for the surgery, and claimant"now has ongoing problems with that same tendon."(Id.)He opined that, under such circumstances, the 2004 injury contributed to the 2015 right shoulder conditions.(Id.)

Referring to the claimed rotator cuff tear as a "recurrent tear" or "failed repair," Dr. Butters further opined that the 2010 injury (which had resulted in the right rotator cuff tear) and the resulting surgery contributed to the 2015 right shoulder pathology.(Ex. 84-13).He explained:

"It had been five years, and at some point you have to call this a new problem, but in this case, I think it's ongoing from the previous problem.It's part of the natural history of rotator cuff tear where many don't heal or fail at some point years later, and I feel

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