In re Comp. of Culley, WCB Case No. 18-01533
| Decision Date | 03 August 2020 |
| Docket Number | WCB Case No. 18-01533,WCB Case No. 17-04566 |
| Parties | In the Matter of the Compensation of ROBERT J. CULLEY, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Dale C Johnson, Claimant Attorneys
Reviewing Panel: Members Ousey and Woodford.
Claimant requests review of that portion of Administrative Law Judge (ALJ) Fleischman's order that upheld the SAIF Corporation's denial of his new/omitted medical condition claim for left L5-S1 lumbar radiculopathy. On review, the issue is compensability.
We adopt and affirm the ALJ's order with the following supplementation.
In upholding SAIF's denial, the ALJ concluded that, even assuming the radiculopathy existed and constituted a claim for a "condition," the opinion of Dr. Herring, claimant's treating neurologist, did not persuasively establish that his work injury was a material contributing cause of the need for treatment/disability for the radiculopathy. In doing so, the ALJ found that Dr. Herring's opinion was inadequately explained, was not based on complete and accurate information, and did not sufficiently respond to the contrary opinion of Dr. Button, an orthopedic surgeon who examined claimant at SAIF's request.
On review, claimant contends that Dr. Herring's opinion is persuasive and entitled to deference because Dr. Herring was the treating physician. For the following reasons, we disagree with claimant's contentions.
To establish the compensability of his new/omitted medical condition claim, claimant must prove that the claimed condition exists, and that his work injury was a material contributing cause of the disability/need for treatment for the claimed condition.1 ORS 656.005(7)(a); ORS 656.266(1); Betty J. King, 58 Van Natta 977 (2006); Maureen Y. Graves, 57 Van Natta 2380 (2005).
Because of the disagreement between medical experts regarding the existence and cause of the need for treatment of the claimed condition, the claim presents a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279, 282 (1993); Mathew C. Aufmuth,62 Van Natta 1823, 1825 (2010). Absent persuasive reasons to the contrary, we generally give greater weight to the opinion of an attending physician. Weiland v. SAIF, 63 Or App 810, 814 (1983); Gary S. Knight, 63 Van Natta 1206, 1207 (2011). However, we may properly give more or less weight to the opinion of the treating physician depending on the record in each case. Dillon v. Whirlpool Corp., 172 Or App 484, 489 (2001); Emma I. Sims, 63 Van Natta 1198, 1202 (2011) (). More weight is given to those medical opinions that are well reasoned and based on complete information. Somers v. SAIF, 77 Or App 259, 263 (1986).
Here, only Dr. Herring supported the compensability of claimant's new/omitted medical condition claim for a left L5-S1 lumbar radiculopathy. For the following reasons, his opinion is unpersuasive.
Dr. Essex, who treated claimant before and after the July 29, 2015, work injury, opined that claimant had very similar symptoms on examination both before and after the work injury. (Exs. 1, 3, 4, 10, 42). The record does not support a conclusion that Dr. Herring was aware of that history. Under such circumstances, Dr. Herring's opinion is not based on a complete and accurate history. Thus, we discount his opinion. See Somers, 77 Or App at 263; Joseph Martinez, 67 Van Natta 1307, 1310 (2015) ().
Moreover, in reaching his conclusion that the radiculopathy was caused by the July 2015 work injury, Dr. Herring relied on Dr. Yao's September 8, 2015, chart note. (Ex. 88-9). The history contained in that note represented that claimant had recently experienced numbness in his left foot two weeks post injury and had seen Dr. Zilkoski for those symptoms. (Ex. 29-1). Yet, the record establishes that claimant treated with Dr. Zilkoski for his left foot symptoms before the July 2015 work injury. (Exs. 18, 20). Consequently, we further discount Dr. Herring's opinion, as based on inaccurate information. See Miller v. Granite Constr. Co., 28 Or App 473 (1977); Jim E. Rude, 71 Van Natta 697, 699 (2019) ().
Further, as found by the ALJ, Dr. Herring did not adequately rebut Dr. Button's opinion that there must be more than foot numbness symptoms after the injury to establish the existence of a radiculopathy. (Ex. 86-12). While we acknowledge that Dr. Herring responded to Dr. Button's point that the MRI studies did not support any nerve root compression or other reason for claimant's symptoms, we find his response to be unexplained. Specifically, Dr. Herring hypothesized that claimant sustained a "rent in the annulus" that did not present on MRI. (Ex. 88-7). Yet, in reaching this conclusion, Dr. Herring offered no explanation to support his conclusion, such as whether claimant's signs and symptoms on examination close in time to the injury fit within the dermatomal pattern for the left L5-S1 radiculopathy condition. Because Dr. Herring did not explain his opinion, we find it unpersuasive. See Moe v. Ceiling Sys., Inc., 44 Or App 429, 433 (1980) (); Andrey V. Antonyuk, 71 Van Natta 321, 325 (2019).
We acknowledge that Dr. Herring had an opportunity to treat claimant over time. However, whether we give greater weight to the opinion of the treating physician depends on the record in each case. Dillon, 172 Or App at 489. Here, despite his status as the treating physician, we find Dr. Herring's opinion to be unpersuasive. Therefore, we decline to defer to his opinion.2 See Abdennaim Bougzim, 69 Van Natta 949, 954 (2017) ().
In sum, for the reasons expressed above, as well as those articulated in the ALJ's order, Dr. Herring's opinion is unpersuasive.3...
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