In re Comp. of Luciano

• Decision Date: 17 June 2021
• Docket Number: WCB Case No. 19-04258
• Citation: 73 Van Natta 512
• Parties: In the Matter of the Compensation of VARIE J. LUCIANO, Claimant
• Court: Oregon Workers' Compensation Division

73 Van Natta 512

In the Matter of the Compensation of VARIE J. LUCIANO, Claimant

WCB Case No. 19-04258

Oregon Workers' Compensation Division

June 17, 2021

ORDER ON REVIEW

Welch Bruun & Green, Claimant Attorneys

Tolleson Conratt Nielsen et al, Defense Attorneys

Reviewing Panel: Members Woodford and Ousey.

Claimant requests review of Administrative Law Judge (ALJ) Fulsher's order that upheld the self-insured employer's denial of claimant's aggravation claim for bilateral carpal tunnel syndrome (CTS), left humeral epicondylitis, and bilateral flexor pronator myotendinitis conditions. On review, the issue is aggravation.

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

The ALJ found that the record did not persuasively establish an actual worsening of the accepted bilateral CTS, left humeral epicondylitis, and bilateral flexor pronator myotendinitis conditions. Accordingly, the ALJ upheld the employer's aggravation denial.

On review, claimant contends that Dr. Puziss's opinion persuasively establishes an actual worsening of the accepted conditions. Based on the following reasoning, we disagree with claimant's contention.

To establish a compensable aggravation claim, claimant must prove an "actual worsening" of the accepted conditions since the last award or arrangement of compensation. See ORS 656.266(1); ORS 656.273(1); Robin G. Guzman, 67 Van Natta 1062, 1064 (2015). An "actual worsening" may be established either by direct proof of a pathological worsening or through inference of such a worsening based on increased symptoms. See Guzman, 67 Van Natta at 1064. In the latter instance, the inference must be made by a physician. See SAIF v. Walker, 330 Or 102, 118-19 (2000); Stuart A. Macdonald, 71 Van Natta 1052, 1055 (2019). In other words, if a persuasive medical expert's opinion establishes that increased symptoms constitute an actual worsening of a particular compensable condition, then the actual worsening standard of ORS 656.273 is satisfied. See SAIF v. January, 166 Or App 620, 624 (2000); Jerry G. Bump, 59 Van Natta 807, 809 (2007). In either circumstance, an "actual worsening" must be established by a medical opinion supported by objective findings. See ORS 656.273(1)(a); Robin K. Farr, Jr., 66 Van Natta 949, 950 (2014).

Determining whether claimant's accepted conditions actually worsened is a complex medical question that must be resolved by expert medical opinion. See Uris v. State Comp. Dep't, 247 Or 420, 426 (1967); Barnett v. SAIF, 122 Or App 279, 283 (1993); Macdonald, 71 Van Natta at 1055. More weight is given to those 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, claimant relies on Dr. Puziss, who opined that there was a pathological worsening of the accepted bilateral CTS, left humeral epicondylitis, and bilateral flexor pronator myotendinitis conditions. (Ex. 93-2). However, we are unpersuaded by his opinion for the reasons stated in the ALJ's order and those set forth below.

Dr. Puziss's opinion is not well reasoned. Although he referenced findings of tenderness, pain, and a positive Tinel's test, he did not indicate whether these findings were different from those recorded before the last award of compensation. (Exs. 87-2, 91-3-4, 93-9-11). In addition, Dr. Puziss did not adequately explain how the referenced findings supported a conclusion that claimant's accepted conditions had actually worsened. (Id.) Under such circumstances, Dr. Puziss's opinion is conclusory and unpersuasive. See Moe v. Ceiling Systems, 44 Or App 429, 433 (1980) (physician's conclusory and unexplained opinion found less persuasive); Kimberly A. Samard, 70 Van Natta 1139, 1144 (2018) (physician's opinion that did not explain how documented findings supported a worsening of the accepted conditions was insufficient to establish that the claimant's aggravation claim was compensable).

Moreover, Dr. Puziss's opinion is internally inconsistent. He initially opined that claimant's CTS had healed and that only claimant's epicondylitis and myotendinitis conditions had pathologically worsened. (Ex. 87-2-3). Dr. Puziss subsequently concluded that claimant's bilateral CTS had also pathologically worsened, but he did not provide a reason for this apparent change of opinion.¹ (Exs. 91-4, 93-2). Without further explanation, we are unpersuaded by Dr. Puziss'sopinion. See Howard L. Allen, 60 Van Natta 1423, 1424-25 (2008) (internally inconsistent physician's opinion, without explanation for the inconsistencies, was unpersuasive); Kenneth L. Edwards, 58 Van Natta 487, 488 (2006) (unexplained change of opinion rendered physician's opinion unpersuasive).

Claimant contends that Dr. Puziss's opinion is entitled to deference because he was claimant's treating physician. See Weiland v. SAIF, 64 Or App 810, 814 (1983) (greater weight given to a treating physician's opinion because of a better opportunity to evaluate the claimant's condition). Although Dr. Puzzis treated claimant before and after the last award of compensation, he did not sufficiently explain how claimant's accepted conditions differed or worsened during that time period, as reasoned above. (Exs. 87, 91, 93). Under such circumstances, we decline to defer to Dr. Puziss's opinion. See Dillon v. Whirlpool Corp.. 172 Or App 484, 489 (2001) (treating physician may be given more or less weight based on the record); Robert J. Cully, 72 Van Natta 721 (2020) (declining to defer to treating physician's opinion where the opinion was otherwise unpersuasive).

Finally, claimant contends that Dr. Puziss's opinion establishes an actual worsening based on increased symptoms. Specifically, Dr. Puziss stated that claimant was medically stationary at closure with improved symptoms, whereas after closure she was "symptomatic" with "new symptoms." (Exs. 87-2, 93-10). Yet, Dr. Puziss did not indicate what symptoms were new, how they were different, or how they supported on inference of an actual worsening.² (Id.) Under such circumstances, we are not persuaded that Dr. Puziss's opinion establishes an actual worsening of the accepted conditions based on increased symptoms. See ORS 656.273(8); Melissa A. Salo, 64 Van Natta 2222, 2223-24 (2012) (physician's opinion that did not explain whether the claimant's increased symptoms constituted more than a waxing and waning of symptoms, did not persuasively establish a worsening of the claimant's condition).

In sum, based on the foregoing reasoning and that expressed in the ALJ's order, Dr. Puziss's opinion does not persuasively establish an actual worsening of the accepted conditions.³ See Samard, 70 Van Natta at 1144. Consequently, claimant's aggravation claim is not compensable. See ORS 656.266(1); ORS 656.273(1). Accordingly, we affirm the ALJ's order upholding the employer's aggravation denial.

ORDER

The ALJ's order dated October 5, 2020, is affirmed.

Entered at Salem, Oregon on June 17, 2021

1. Dr. Puziss referenced a positive Tinel's test in his subsequent opinion regarding claimant's bilateral CTS. (Ex. 91-4). However, because he also referenced this finding in his initial opinion, the record does not support a conclusion that Dr. Puziss's apparent change of opinion was based on any new information. (Exs. 87-2, 91-4); see Ralph L. Dunnington, 72 Van Natta 294, 296 (2020) (physician's apparent change of opinion that was not based on new information, without further explanation, was unpersuasive).

2. In addition, "medically stationary" means that no further material improvement would reasonably be expected from medical treatment or the passage of time. See ORS 656.005(17). It does not mean that there is...