In re Comp. of Davis, WCB Case No. 20-03759

• Citation: 73 Van Natta 553
• Decision Date: 13 July 2021
• Docket Number: WCB Case No. 20-03759
• Parties: In the Matter of the Compensation of RUFUS E. DAVIS, Claimant
• Court: Oregon Workers' Compensation Division

73 Van Natta 553

In the Matter of the Compensation of RUFUS E. DAVIS, Claimant

WCB Case No. 20-03759

Oregon Workers' Compensation Division

July 13, 2021

ORDER ON REVIEW

Dale C Johnson, Claimant Attorneys

SAIF Legal Salem, Defense Attorneys

Reviewing Panel: Members Ousey and Woodford.

Claimant requests review of Administrative Law Judge (ALJ) Sencer's order that: (1) upheld SAIF's "ceases" denial of his combined lumbar strain condition; and (2) declined to award a penalty and an attorney fee for allegedly unreasonable claim processing. On review, the issues are compensability, penalties, and attorney fees.

We adopt and affirm the ALJ's order with the following supplementation.

In January 2020, SAIF accepted claimant's low back injury claim as a "lumbar strain combined with pre-existing degenerative disc disease." (Ex. 15). In July 2020, SAIF issued a denial stating that the "accepted injury" was no longer the major contributing cause of the disability or need for treatment for claimant's "combined condition of lumbar strain combined with the pre-existing degenerative disc disease." (Ex. 27). Subsequently, claimant initiated a new/omitted medical condition claim for a "recurrent left L4-5 disc herniation," which SAIF accepted in September 2020. (Exs. 32, 36).

In upholding SAIF's "ceases" denial, the ALJ relied on the uncontroverted opinions of claimant's treating physicians, Drs. Aikawa and Keiper, that the accepted lumbar strain had resolved. Citing Brown v. SAIF, 361 Or 241 (2017), and its holding that a carrier is authorized to issue a denial when the previously accepted medical condition ceases to be the major contributing of the disability and need for treatment for the combined condition, the ALJ upheld SAIF's denial, despite SAIF's subsequent acceptance of the "recurrent left L4-5 disc herniation."

On review, claimant contends that his "otherwise compensable injury" was not "just a lumbar strain," but also included claimant's left leg radiculopathy. In doing so, he argues that the radiculopathy is the "prominent symptom" that has "driven this claim." Thus, claimant argues that, because his left leg symptoms did not improve before SAIF issued its "ceases" denial, the requisite changed circumstances or condition to support the denial did not occur. Further, claimant argues that SAIF's denial should be set aside because it did not describe the preexisting condition with particularity as required by OAR 438-005-0060. Claimant additionally requests a penalty and penalty-related attorney fee, contending that SAIF's issuance and maintenance of the "ceases" denial was unreasonable. Based on the following reasoning, we affirm the ALJ's order.

ORS 656.262(6)(c) authorizes a carrier to deny an accepted combined condition if the "otherwise compensable injury" ceases to be the major contributing cause of the combined condition. ORS 656.262(6)(c), (7)(b). The carrier bears the burden to establish a change in the claimant's condition or circumstances from the effective date of the combined condition acceptance such that the "otherwise compensable injury" was no longer the major contributing cause of the disability/need for treatment of the combined condition. ORS 656.266(2)(a); Walmart Stores, Inc. v. Young, 219 Or App 410, 419 (2008); Oregon Drywall Sys. v. Bacon, 208 Or App 205, 210 (2006); State Farm Ins. Co. v. Lyda, 150 Or App 554, 559 (1997) (establishment of changed circumstances is a prerequisite for denial of an accepted combined condition). Where the carrier has the burden of proof under ORS 656.266(2)(a), the evidence supporting its position must be persuasive. Jason J. Skirving, 58 Van Natta 323, 324 (2006), aff'd without opinion, 210 Or App 467 (2007).

In analyzing a "ceases" denial under ORS 656.262(6)(c), the contributions of the component parts of the combined condition are evaluated; i.e., the "otherwise compensable injury" and the statutory preexisting condition. Vigor Indus., LLC v. Ayres, 257 Or App 795, 803 (2013); Christopher L. Rowles, 66 Van Natta 1445, 1454 (2014). The "otherwise compensable injury" is the previously accepted condition, rather than the work-related injury incident. Brown v. SAIF, 361 Or 241, 282 (2017); Barbara J. DeBoard, 71 Van Natta 550, 553-55 (2019). Therefore, a carrier may deny the accepted combined condition if the medical condition that the carrier previously accepted ceases to be the major contributing cause of the combined condition. Brown, 361 Or at 282.

Resolution of this issue is a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279 (1993); Lindsy E. Dean, 71 Van Natta 890, 891 (2019). We rely on medical opinions that are well reasoned and based on complete information. See Somers v. SAIF, 77 Or App 259, 263 (1986); Linda E. Patton, 60 Van Natta 579, 582 (2008).

Here, the combined lumbar strain condition was accepted as of the date of injury, December 2, 2019. (Ex. 15). Thus, that date is the "baseline" for determining whether there was a change in the combined condition. Moreover, the denial stated that, as of July 23, 2020, the accepted injury was no longer the major contributing cause of the disability or need for treatment for the combined condition "of lumbar strain combined with the pre-existing degenerative disc disease." (Ex. 27). Accordingly, SAIF must establish a change in claimant's condition between December 2, 2019 and July 23, 2020, such that the previously accepted condition (lumbar strain) ceased to be the major contributing cause of the disability or need for treatment for the combined condition. ORS 656.262(6)(c); ORS 656.266(2)(a); Brown, 361 Or at 282.

We agree with the ALJ's assessment that SAIF's burden of proof was satisfied by the opinions of Drs. Aikawa and Keiper, who concluded that claimant's accepted lumbar strain had resolved by the time of the July 23, 2020, "ceases" denial. (Exs. 21-1, 22-1). We write further to address claimant's contentions concerning the persistence of his left leg radiculopathy symptoms relative to SAIF's "ceases" denial.

Here, despite claimant's contentions to the contrary, his "otherwise compensable injury" is the specifically accepted lumbar strain. (Ex. 15). Because the lumbar strain is the only accepted "otherwise compensable injury" component of the accepted and denied combined condition, we weigh only the accepted lumbar strain against claimant's "pre-existing degenerative disc disease." See Brown, 361 Or at 283; Carolyn L. Farruggia, 69 Van Natta 1242, 1244 (2017). Both Drs. Aikawa and Keiper were aware of claimant's left leg radiculopathy symptoms, and both concluded that claimant's lumbar strain resolved and was no longer the major contributing cause of claimant's need for treatment. (Exs. 21-1, 22-1). Consequently, the medical opinions do not support a conclusion that the resolution of the radicular symptoms was necessary to establish the resolution of claimant's accepted lumbar strain. See John H. Dixon, 56 Van Natta 765, 768, recons, 56 Van Natta 1124 (2004) (doctor's opinion that strain had resolved and that preexisting condition was the major cause was sufficient to identify the change in the claimant's condition).

Accordingly, based on the abovementioned reasoning, in addition to that articulated in the ALJ's order, we conclude that the unrebutted opinions of Drs. Aikawa and Keiper establish a "change" in claimant's circumstances or condition such that the "otherwise compensable injury" was no longer the major contributing cause of the accepted combined condition as of July 23, 2020. See, e.g., John P. De Jesus, 57 Van Natta 566 (2005), aff'd without...