In re Comp. of Samard
| Decision Date | 04 October 2018 |
| Docket Number | WCB Case No. 17-03733 |
| Parties | In the Matter of the Compensation of KIMBERLY A. SAMARD, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Moore & Jensen, Claimant Attorneys
Reviewing Panel: Members Ousey and Curey.
The SAIF Corporation requests review of Administrative Law Judge (ALJ) Poland's order that set aside its denial of claimant's aggravation claim for left hand/finger conditions. On review, the issue is aggravation. We reverse.
We adopt the ALJ's "Findings of Fact," and provide the following summary and supplementation.
Claimant sustained a compensable injury in April 2014. SAIF accepted a left third finger sprain, a left fourth finger sprain, a nondisplaced fracture of the proximal phalanx of the left index finger, and a left knee strain. (Ex. 50).
In May 2014, Dr. Ferguson, an occupational medicine specialist, became claimant's attending physician. (Ex. 7). He authorized a June 2014 MRI that showed: (1) a nondisplaced avulsion fracture at the ulnar base of the proximal phalanx of the index finger; and (2) high grade tearing of the ulnar collateral ligament of the index finger metacarpophalangeal (MCP/MP) joint that appeared lax and completely disrupted at the phalangeal attachment. (Exs. 10, 15). Dr. Ferguson noted that the MRI showed the avulsion fracture, and also a complete disruption of the ulnar collateral ligament of the MP joint. (Ex. 16-1).
In August 2014, Dr. Tsai, an orthopedic surgeon, performed a surgical repair of the torn ulnar collateral ligament. (Ex. 22-1). The procedure included removal of the avulsed proximal phalanx, placement of mini Mitek suture anchor into the proximal phalanx toward the volar side of the ulnar aspect of the phalanx, and then attaching the collateral ligaments. (Id.)
In September 2014, Dr. Ferguson indicated that the mechanism of injury was a twisting motion that had significant force to break a finger and, therefore, "could easily have torn a collateral ligament." (Ex. 25).
In May 2015, Dr. Ferguson released claimant to regular work. (Ex. 58). In July 2015, he performed a closing examination, finding reduced range of motion (ROM) in the left index and middle fingers, reduced grip strength, and some residual left hand/finger discomfort and discoloration. (Exs. 60, 61). He further noted that claimant had sustained a fracture of the proximal phalanx of the left index finger and also a "ligamentous injury which required surgery." (Ex. 61-1).
A July 29, 2015, Notice of Closure awarded 5 percent permanent impairment based on reduced ROM in the index and middle fingers. (Ex. 63). The Updated Notice of Acceptance included the conditions previously accepted. (Exs. 50, 63-4). Claimant requested reconsideration.
In October 2014, Dr. Gunn, the medical arbiter, performed an examination. (Ex. 65). She subsequently clarified that Dr. Ferguson's closing examination should be considered as representative of her impairment. (Ex. 65-11).
A November 2015 Order on Reconsideration affirmed the Notice of Closure's 5 percent whole person impairment award. (Ex. 66).
In February 2017, claimant presented to Dr. Ferguson for increased pain and swelling in her left fingers and wrist. (Ex. 67). Dr. Ferguson noted significant swelling over the dorsum of the wrist and fingers, decreased ROM and grip strength (without specific measurements), and significant tenderness over the MCP joint and dorsum of the hand. (Id.)
In June 2017, Dr. Ferguson noted swelling over the MCP joints of the index/long fingers, and significant tenderness, thickening of the joint, painful ROM, and limited flexion and extension. (Ex. 71-1).
In June 2017, claimant filed an aggravation claim for her accepted left hand/finger conditions. (Ex. 72; Tr. 2).
In July 2017, Dr. Ferguson opined that claimant had an "aggravation of her original injury," and that the major contributing cause of the "worsened condition" was the April 2014 work injury. (Ex. 74-1, -3).
In late July 2017, Dr. Tsai evaluated claimant, and concluded that the left index finger ROM was "the same as it was at the end of the prior surgery." (Ex. 77-5). Specifically, he noted that claimant was able to flex the finger, but not fully down into her palm (approximately one centimeter away). (Id.)
A mid-August 2017 MRI identified postsurgical change involving the index finger MP joint with fixation screw within the ulnar aspect of the proximal base at the site of the reported avulsion fracture, but without acute fracture. (Ex. 79). There was also scarring and thickening of the ulnar collateral ligament at the left index finger MP joint (without acute tear) that was "likely [a] sequela of [the] prior injury and subsequent healing." (Id.) The MRI also documented very mild edema and thickening of the radial collateral ligament of the left index and middle finger MP joints indicating mild subacute sprains, and findings suggesting very mild posttraumatic osteoarthritis involving the index finger MP joint. (Id.)
In late August 2017, Dr. Vetter, an orthopedic surgeon, examined claimant at SAIF's request. (Ex. 80). He reviewed the August 2017 MRI, noting that the repair appeared to be intact, and there was no significant adjacent edema or anything suggestive of acute changes. (Ex. 80-12). He opined that there was no objective evidence to support a worsening of claimant's "medically stationary hand difficulties" with respect to her April 2014 work event. (Ex. 80-16). In support of that proposition, he noted that the index finger measurements were the same as Dr. Ferguson's closing examination, but that the middle finger MP motion had actually improved, and that claimant did not have localized tenderness. (Id.) Ultimately, he concluded that claimant's current findings were not "above and beyond the anticipated waxing and waning contemplated by the prior disability award," and that her function had actually improved. (Ex. 80-18, -19).
SAIF denied claimant's aggravation claim. (Ex. 81). Claimant timely requested a hearing.
In September 2017, Dr. Ferguson retired, and Dr. Cowan, Dr. Ferguson's associate and an occupational medicine specialist, became claimant's attending physician. (Ex. 81B). He noted full ROM in all digits, and some mild swelling, bruising, and tenderness of the first and second MP areas. (Id.)
Subsequently, Dr. Tsai reviewed the August 2017 MRI, noting that claimant had some injury of the index radial collateral ligament, as well as the long finger radial collateral ligament. (Ex. 81C-5). He reported that claimant was status post surgery on the left index finger "with ulnar collateral ligament injury, which was reconstructed." (Id.)
In October 2017, Dr. Cowan documented mild swelling around the second MCP joint. (Ex. 81D).
Dr. Cowan subsequently disagreed with Dr. Vetter's conclusion that claimant's condition had not worsened. (Ex. 82). In doing so, he relied on the fact that claimant had previously been released to regular work, but was no longer able to perform her regular duties, she had increased pain, swelling and ecchymosis, and the MRI showed a subacute sprain of the surgically repaired ligament. (Id.)
In November 2017, Dr. Tsai indicated that he understood the accepted conditions to be left third finger sprain, left fourth finger sprain, nondisplaced fracture of the proximal phalanx of the left index finger, and left knee strain. (Ex. 84). He opined that none of the accepted conditions had worsened, because claimant's use, ROM, and sensation were the same as her status post surgery. (Id.)
In late November 2017, noting that claimant's swelling, ecchymosis, and increased tenderness correlated with some changes on "the MRI," Dr. Cowan continued to opine that claimant's "condition" had actually worsened. (Ex. 85).
In January 2018, the parties deposed Dr. Cowan. (Ex. 86).
The ALJ determined that the ulnar collateral ligament tear was an accepted condition. Relying on Dr. Cowan's opinion, the ALJ determined that claimant had established a compensable aggravation claim.
On review, SAIF contends that the ulnar collateral ligament condition was not part of the accepted claim. In addition, SAIF argues that the record does not persuasively establish that claimant's accepted conditions have actually worsened. For the following reasons, we agree with SAIF's contentions.
The scope of an acceptance is a question of fact. Ligatich v. Liberty Northwest Ins. Corp., 185 Or App 555, 561 (2003); Paulino C. Dela Cruz, 55 Van Natta 3588, 3589 (2005). When a carrier accepts a specific condition it is not necessary to resort to contemporaneous medical records to determine what condition was accepted. See Kim D. Wood, 48 Van Natta 482, 484 (1996), aff'd without opinion, 144 Or App 496 (1996) (); Diana M. McGuire, 64 Van Natta 194, 195 (2012).
Here, the only left hand conditions that SAIF specifically accepted in writing were left third finger sprain, left fourth finger sprain, and nondisplaced fracture of the proximal phalanx of the left index finger. (Ex. 50). SAIF's specific acceptance of those conditions is not ambiguous. See Wood, 48 Van Natta at 484. Therefore, we need not examine the contemporaneous medical evidence to determine what conditions were accepted. Id.
However, claimant contends that a preponderance of the medical evidence establishes that her ulnar collateral ligament tear condition is the same as the previously accepted fracture condition. Based on our review of this record, we disagree.
The medical evidence distinguishes the accepted fracture condition from the ulnar collateral ligament condition. The June 2014 MRI noted both the avulsion fracture and a high grade tear of the ulnar collateral ligament. (Ex. 15). Dr. Ferguson concluded that the same forces that...
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