In re Comp. of Dean, WCB Case No. 17-04802

• Decision Date: 06 August 2019
• Docket Number: WCB Case No. 17-04802
• Parties: In the Matter of the Compensation of LINDSY E. DEAN, Claimant
• Court: Oregon Workers' Compensation Division

71 Van Natta 890

In the Matter of the Compensation of LINDSY E. DEAN, Claimant

WCB Case No. 17-04802

Oregon Workers' Compensation Division

August 6, 2019

ORDER ON REVIEW
Alvey Law Group, Claimant Attorneys
Reinisch Wilson Weier, Defense Attorneys

Reviewing Panel: Members Ousey and Woodford.

The self-insured employer requests review of Administrative Law Judge (ALJ) Riechers's order that set aside its "ceases" denial of claimant's combined cervical condition. On review, the issue is compensability.

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

In setting aside the employer's denial, the ALJ determined that the opinions of Drs. Toal and Green were insufficiently persuasive to establish that claimant's accepted cervical and trapezius strains ceased to be the major contributing cause the of disability/need for treatment of her combined cervical condition.

On review, the employer contends that the opinions of Drs. Toal and Green persuasively establish that, by the time of their January 10, 2017, examination, the accepted strains were no longer the major contributing cause of the disability/need for treatment of the combined cervical condition. For the following reasons, we disagree.

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. The carrier bears the burden to establish a change in the claimant's condition or circumstances 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); Wal-Mart Stores, Inc. v. Young, 219 Or App 410, 419 (2008). 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), we evaluate only the contributions of the component parts of the combined condition; i.e., the "otherwise compensable injury" and the statutory preexisting condition.

Page 891

Vigor Indus., LLC v. Ayres, 257 Or App 795, 803 (2013). In Brown v. SAIF, 361 Or 241, 282 (2017), the court concluded that the "otherwise compensable injury" is the previously accepted condition, rather than the work-related injury incident. 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. Id. Resolution of this causation issue is a complex medical question that must be resolved by expert medical opinion. Uris v. Comp. Dep't, 247 Or 420, 424-36 (1967); Barnett v. SAIF, 122 Or App 279 (1993). We rely on medical opinions that are well reasoned and based on complete information. Somers v. SAIF, 77 Or App 259, 263 (1986).

Here, the employer relies on the opinions from Dr. Green, a neurologist, and Dr. Toal, an orthopedic surgeon, who examined claimant at the employer's request, to establish a "change" in claimant's condition to support its "ceases" denial. For the following reasons, we find their opinions unpersuasive.

In their initial report, Drs. Green and Toal opined that claimant's...