In re Comp. of Van Wormer
| Decision Date | 07 June 2021 |
| Docket Number | WCB Case No. 19-05728 |
| Citation | 73 Van Natta 473 |
| Parties | In the Matter of the Compensation of JUSTIN VAN WORMER, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Hollander & Lebenbaum et al, Claimant Attorneys
Tolleson Conratt Nielsen et al, Defense Attorneys
Reviewing Panel: Members Curey and Ousey.
The self-insured employer requests review of Administrative Law Judge (ALJ) Sencer's order that set aside its denial of claimant's new/omitted medical condition claim for an abnormal dorsal ulnar cutaneous sensory nerve function condition. On review, the issue is compensability. We reverse.
We adopt the ALJ's "Findings of Fact."
The ALJ set aside the employer's denial. In doing so, the ALJ relied on claimant's treating neurologist, Dr. Kaur, finding her opinion more persuasive than the contrary medical opinions of Drs. Cribbs, Buehler, Button, and Groman.
On review, the employer contests the ALJ's evaluation of the medical evidence. For the following reasons, we reverse the ALJ's order.
Claimant must establish the existence of the claimed new/omitted medical condition as a fact necessary to establish the compensability of the claim. ORS 656.266(1); Crystal R. Dedmore-Melton, 71 Van Natta 828, 828 (2019) (); Maureen Y. Graves, 57 Van Natta 2380, 2381 (2005). If the condition exists and arose directly, even if belatedly, from the industrial accident, the material contributing cause standard applies to determine compensability. Albany General Hosp. v. Gasperino, 113 Or App 411, 414 (1992). On the other hand, if the condition is a separate condition that arose from the compensable injury, it is analyzed as a "consequential condition." Id. For example, a back strain caused by altered gait resulting from a compensable foot injury would be a consequential condition. Fred Meyer, Inc. v. Crompton, 150 Or App 531, 536 (1997); Gasperino, 113 Or App at 415 n 2. A consequential condition is compensable if claimant establishes that the compensable work injury is the major contributing cause of the consequential condition. ORS 656.005(7)(a)(A); ORS 656.266(1); Gasperino, 113 Or App at 415.
Because of the disagreement between medical experts regarding the existence and the cause of claimant's abnormal ulnar nerve condition, need for treatment, and disability, this claim presents a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279, 282 (1993); Matthew C. Aufmuth, 62 Van Natta 1823, 1825 (2010). In evaluating the medical evidence, we rely on those opinions that are both well reasoned and based on complete information. Somers v. SAIF, 77 Or App 259, 263 (1986).
Here, Dr. Kaur provided the only opinion supporting the compensability of the claim. For the following reasons, we find her opinion unpersuasive.
Dr. Kaur, a neurologist, initially examined claimant on April 17, 2019. (Ex. 16). She performed electrodiagnostic studies and concluded that the study was abnormal due to an "absent right dorsal ulnar cutaneous anti-sensory response." (Ex. 16-2). She opined that the isolated right dorsal ulnar cutaneous sensory neuropathy "could" be due to inflammation in the distal radial ulnar joint given claimant's subjective complaints of significant pain and swelling in that location. (Id.) Dr. Kaur also posited that it was "possible" that claimant had a small tear in that nerve due to his work event. (Id.)
Subsequently, after reviewing the June and October 2019 reports from Drs. Groman and Button (neither of whom attributed an ulnar nerve condition to the work injury), Dr. Kaur opined that, although she generally agreed with those reports, it was "possible" that claimant's ulnar nerve function "could" be related to his January 15, 2019, work injury. (Ex. 30-1). However, Dr. Kaur was unable to state within reasonable medical probability that the abnormality was materially caused by claimant's January 2019 work injury. (Id.)
In June 2020, the parties deposed Dr. Kaur. (Ex. 33). Dr. Kaur reviewed the MRI findings and explained that she had "not seen, in the past, that some tendinosis or soft tissue edema can cause an absent nerve response." (Ex. 33-8). She further stated that it was "possible that because of the edema and because of the tendinosis, maybe there's inflammation, maybe that's compression on a nerve[.]" (Ex. 33-9). Based on the nerve conduction study and her clinical correlation, Dr. Kaur opined that it would be reasonably medical probable that the nerve was damaged. (Ex. 33-11).
When asked about the findings documented during claimant's January 16, 2019, visit, Dr. Kaur explained that the examination findings concerning the little finger were not specific enough to determine if they correlated with the claimed ulnar nerve condition. (Ex. 33-11-14). However, she concluded that some findings during her examination correlated with the condition. (Ex. 33-14). When asked whether the swelling in the distal radial ulnar joint was consistent with nerve injury, Dr. Kaur reiterated that with mild swelling she would not expect the nerve response to be absent, and she opined that it was "possible" but not "probable." (Ex. 33-15-16). She stated, "the swelling, I suppose, can cause injury to the nerve rather than injury to the nerve causing swelling of the tendons and soft tissue." (Ex. 33-16).
When asked whether the work injury was a material or significant cause of the loss of nerve function on a more likely than not basis, Dr. Kaur responded that it was "more likely." (Ex. 33-17). However, she added that she was "struggling" to find papers that support that hyperextension injury has caused nerve damage to the dorsum ulnar cutaneous sensory response only, such that it was difficult to correlate the mechanism of injury to the nerve injury. (Id.) She then explained:
(Id.) Moreover, she stated that claimant could have a severed nerve causing the finding. (Ex. 33-18).
When asked again (based on claimant's injury, his presentation, the nerve conduction studies, and the absent nerve findings) whether it was more likely than not that the January 2019 work injury caused the condition that caused the absent nerve function, Dr. Kaur stated, "I would say yes." (Ex. 33-19). She explained that, given the clinical scenario and the absent nerve sensory response, it was more probable than possible, but then stated that, (Ex. 33-23). Dr. Kaur concluded that, in the absence of a subsequent electrodiagnostic study, she did not know the cause. (Ex. 33-24).
Finally, Dr. Kaur clarified that she agreed with Drs. Groman and Button that the hyperextension mechanism was inconsistent with this type of nerve injury. (Ex. 33-27). However, she further stated:
(Ex. 33-28). She further concluded that she would expect the condition to be bilateral if it were a congenital condition. (Id.)
After reviewing Dr. Kaur's opinion as a whole, we find it speculative and insufficient to establish a compensable claim. Specifically, Dr. Kaur did not know whether claimant's nerve condition was directly caused by the work injury or as a consequence of the swelling related to the compensable injury. For example, Dr. Kaur was unable to identify whether claimant had a severed nerve directly related to the work incident to explain the absent nerve finding. She also opined that the mechanism of injury (i.e., hyperextension of the wrist) was inconsistent with claimant's condition. Instead, Dr. Kaur recommended additional electrodiagnostic studies to determine the cause of the nerve injury. Under these particular circumstances, without further explanation, we find such reasoning unpersuasive and insufficient to establish compensability on either a direct or indirect basis. See Nadine Appelt, 72 Van Natta 926, 927 (2020) ().
Moreover, Dr. Kaur did not explain whether claimant had swelling from the compensable injury (or some other cause) that was the major contributing cause of...
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