In re Comp. of Deboard
| Decision Date | 23 May 2019 |
| Docket Number | WCB Case No. 14-03132 |
| Parties | In the Matter of the Compensation of BARBARA J. DEBOARD, Claimant |
| Court | Oregon Workers' Compensation Division |
Moore & Jensen, Claimant Attorneys
Sather Byerly & Holloway, Defense Attorneys
Reviewing Panel: Members Woodford and Ousey.1
This matter is before the Board on remand from the Court of Appeals. Fred Meyer Stores, Inc. v. DeBoard, 291 Or App 742 (2018). The court has vacated the Board's order, Barbara J. DeBoard, 67 Van Natta 909 (2015), which reversed an Administrative Law Judge's (ALJ's) order that had upheld the self-insured employer's denial of claimant's new/omitted medical condition claim for several thoracic disc bulge conditions. In reaching its conclusion, the Board applied the analysis expressed in Brown v. SAIF, 262 Or App 640 (2014), which interpreted the phrase "otherwise compensable injury," as used in ORS 656.266(2)(a), as the "work-related injury incident." The court has remanded for reconsideration in light of Brown v. SAIF, 361 Or 241 (2017).
We adopt the ALJ's and the Board's "Findings of Fact" with the following summary and supplementation.
In July 2012, claimant experienced an acute onset of mid-back pain while at work. (Exs. 77B-8, 21). The employer accepted a thoracic sprain. (Ex. 36).
Subsequently, an MRI revealed T6-7, T7-8, and T8-9 disc protrusions. (Ex. 46). On March 7, 2013, claimant initiated a new/omitted medical condition claim for T6, T7-8, and T8-9 disc protrusions. (Ex. 50).
The employer denied the new/omitted thoracic disc protrusion claims. (Ex. 60). Claimant requested a hearing.
Dr. Bolstad, claimant's attending physician, attributed the thoracic disc protrusions to claimant's work activities. (Exs. 69-2, 69A-1). She acknowledged that claimant had degenerative changes, but concluded that the 2012 work injury was the major contributing cause of the need for treatment of the disc protrusions "because [claimant] was not having these severe symptoms of stabbing ongoing mid back pain radiating to the right" before the injury. (Ex. 69A-1).
Dr. Arbeene examined claimant at the employer's request. Dr. Arbeene opined that claimant did not have disc protrusions; rather, he diagnosed degenerative disc bulges at each of the three claimed levels.2 (Ex. 82-2). He conceded that claimant's work activities may have contributed to her symptoms, but opined that the major cause of the disc bulges was the degenerative process resulting from her abnormal spinal curvatures. (Ex. 82-4, -5).
On February 6, 2014, a prior ALJ's order upheld the employer's denial. (Ex. 88-8). The prior ALJ declined to find that a disc "bulge" was the same condition as a disc "protrusion," and determined that claimant had not established the existence of the claimed disc protrusions. (Ex. 88-7).
On review, in a previous decision, we adopted and affirmed the prior ALJ's order. Barbara J. DeBoard, 66 Van Natta 978, 979 (2014). We further stated that, even if claimant had established the existence of the claimed conditions, and an "otherwise compensable injury," we would still conclude, based on Dr. Arbeene's opinion, that the otherwise compensable injury was not the major contributing cause of the combined thoracic disc conditions.
The court affirmed our prior decision, reasoning that our finding that claimant did not prove the existence of the claimed disc "protrusion" conditions was supported by substantial evidence. DeBoard v. Fred Meyer, 285 Or App 732, 739 (2017). Likewise, it concluded that substantial evidence supported our finding that the "disc bulge" conditions were beyond the scope of claimant's new/omitted medical condition claim for the thoracic disc "protrusions." Id. Because the court affirmed our finding that claimant did not prove the existence of the claimed conditions, it did not reach our "alternative holding" concerning the compensability of the claimed conditions. Id. at 733 n 1.
On June 11, 2014, claimant initiated a new/omitted medical condition claim for T6, T7-8, and T8-9 disc protrusions and T6, T7-8, T8-9 disc bulges. (Ex. 99). On June 18, 2014, the employer denied the new/omitted medical condition claim on the basis that the claimed conditions were previously denied/litigated and not related to the compensable work injury or occupational factors. (Ex. 100). Claimant requested a hearing, which is the basis for the present case.
On September 11, 2014, in response to claimant's inquiry, Dr. Bolstad stated that she used the terms "disc protrusion" and "disc bulge" interchangeably. (Ex. 106-1). She indicated that she had not heard of the differentiation made by Dr. Arbeene between the two terms. (Id.) She stated that, in any event, claimant had disc pathology that she would be comfortable describing as either a disc bulge or a disc protrusion at T6, T7-8, and T8-9. (Ex. 106-2). She reiterated her opinion that the work injury was the major contributing cause of the need for treatment for claimant's disc pathology. (Id.)
On September 16, 2014, Dr. Arbeene reviewed claimant's updated medical records and concluded that the thoracic disc bulges had not changed or worsened since May 2013. (Ex. 107-1). Dr. Arbeene maintained that the terms "bulge" and "protrusion" describe slightly different disc shapes, but he acknowledged that both terms describe abnormal disc pathology (i.e., extruding disc material) and "more often that not" are used interchangeably. (Id.).
Reasoning that either the prior litigation was preclusive or that claimant did not prove the compensability of the claimed thoracic disc "bulge" conditions, the ALJ upheld the employer's denial.
On review, we reversed that portion of the ALJ's order that concluded that the compensability of the disc "bulges" had been fully litigated by the prior Board order. DeBoard, 67 Van Natta at 914. In doing so, we reasoned that the prior ALJ's order, which we had adopted, had specifically declined to find that a disc "bulge" was equivalent to a disc "protrusion." Id. We acknowledged that the reasoning in our prior order addressed medical "causation." However, we noted that, because our prior order had done so on an alternative basis, the medical causation analysis was not essential to our final decision on the merits. Id.
Turning to the merits, we concluded, based on Dr. Bolstad's opinion, that the work injury was a material contributing cause of the disability/need for treatment for the thoracic disc bulge conditions. Id. at 915. Assuming, without deciding, that claimant suffered from a "combined condition," we concluded that Dr. Arbeene's opinion was not sufficient to meet the employer's burden to show that the "otherwise compensable injury" was not the major contributing cause of the need for treatment or disability for the combined condition. Id. at 916. In reaching that conclusion, we cited the Court of Appeals decision in Brown for the proposition that the "otherwise compensable injury" as used in ORS 656.266(2)(a) means the "work-related injury incident." Id. at 914.
On judicial review, the court rejected the employer's contention that claimant's new/omitted medical condition claim for the thoracic disc bulges was barred by issue preclusion. DeBoard, 291 Or App at 748. However, it noted that in analyzing the compensability of the claim, we cited the Court of Appeals decision in Brown. Id. Accordingly, the court considered it appropriate to remand in light of the Supreme Court's Brown decision. Id. at 749.
On remand, analyzing the record in accordance with the court's directive, we continue to find that claimant's thoracic disc bulge conditions are compensable. We reason as follows.
Claimant must prove that her July 2012 work injury was a material contributing cause of her disability/need for treatment for the claimed thoracic disc bulge conditions.3 ORS 656.005(7)(a); ORS 656.266(1); Betty J. King, 58 Van Natta 977 (2006). When an otherwise compensable injury combines with a statutory preexisting condition, the carrier has the burden of establishing that the "otherwise compensable injury" is not the major contributing cause of claimant's disability/need for treatment of the combined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a); Jack G. Scoggins, 56 Van Natta 2534, 2535 (2004). Under the Supreme Court's decision in Brown v. SAIF, 361 Or 241, 272 (2017), the "injury" component of the phrase "otherwise compensable injury" in ORS 656.005(7)(a)(B) refers to a medical condition, not an accident.4
Because of the disagreement between medical experts, this claim presents a complex medical question that must be resolved by expert opinion. Barnett v. SAIF, 122 Or App 279, 282 (1993). In evaluating the medical evidence, we rely on those opinions that are both well reasoned and based on accurate and complete information. Somers v. SAIF, 77 Or App 259, 263 (1986).
Here, the record establishes that the 2012 work injury was at least a material contributing cause of claimant's disability/need for treatment for the claimed thoracic disc bulges. Dr. Bolstad, claimant's attending physician, opined that the work injury was the major contributing cause of claimant's need for treatment for the thoracic disc conditions. (Exs. 69A-1, 106-1). In reaching that conclusion, Dr. Bolstad acknowledged that claimant had degenerative changes, but related the need for treatment to the 2012 work injury because "claimant was not having these severe symptoms of stabbing ongoing mid back pain radiating to the right prior to this work related incident." (Ex. 69A-1).
Although Dr. Bolstad initially stated that the work injury was the major contributing cause of the disc "protrusion" conditions, rather than the disc "bulge" conditions, she later clarified that claimant had disc pathology that she would be comfortable describing as either a disc "bulge" or a disc "protrusion" at T6, T7-8, and T8-9. (Ex. 106-2). In doing so, she reiterated that the work injury was the major...
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