In re Comp. of Farruggia

• Decision Date: 14 August 2017
• Docket Number: WCB Case No. 15-03074
• Parties: In the Matter of the Compensation of CAROLYN L. FARRUGGIA, Claimant
• Court: Oregon Workers' Compensation Division

69 Van Natta 1242

In the Matter of the Compensation of CAROLYN L. FARRUGGIA, Claimant

WCB Case No. 15-03074

Oregon Workers' Compensation Division

August 14, 2017

ORDER ON REVIEW

Scott M McNutt Jr, Claimant Attorneys

Bohy Conratt LLP, Defense Attorneys

Reviewing Panel: Members Johnson and Lanning.

The self-insured employer requests review of those portions of Administrative Law Judge (ALJ) Kekauoha's order that: (1) set aside its "ceases" denial of claimant's combined low back condition; and (2) set aside its denial of claimant's new/omitted medical condition claim insofar as it pertained to L2-3 through L4-5 degenerative arthritic conditions. On review, the issue is compensability. We reverse.

FINDINGS OF FACT

We adopt the ALJ's "Findings of Fact."

CONCLUSIONS OF LAW AND OPINION

The ALJ found that claimant's work-related injury incident had not ceased to be the major contributing cause of the disability or need for treatment of claimant's combined condition, which the employer had accepted as a "lumbar strain combined with pre-existing non-compensable lumbar degenerative arthritic conditions/spondylosis from L2-3 to L4-5." Reasoning that the employer had not carried its burden, under the Court of Appeals decision in Brown v. SAIF, 262 Or App 640 (2014),¹ the ALJ set aside the employer's "ceases" denial.

Turning to the new/omitted medical condition claim, the ALJ reasoned that a preponderance of the medical evidence established that claimant's disc herniations at L2-3 and L3-4 were part of the "preexisting condition" component of the accepted combined condition. Because the work injury remained the major contributing cause of claimant's disability and need for treatment of the combined condition, the ALJ set aside the employer's denial of claimant's L2-3 and L3-4disc herniations. Because the parties stipulated at hearing that the degenerative disc disease and degenerative scoliosis at L2 through L5 were encompassed in the "preexisting condition" component of the accepted combined condition, the ALJ also set aside the employer's denial of those conditions.

"Ceases" Denial

A carrier may deny an accepted combined condition if the otherwise compensable injury ceases to be the major contributing cause of the combined condition. ORS 656.262(6)(c); see also ORS 656.005(7)(a)(B) (if an otherwise compensable injury combines with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only insofar as the otherwise compensable injury is the major contributing cause of the disability or need for treatment 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 or need for treatment of the combined condition. ORS 656.266(2)(a); Wal-Mart Stores, Inc. v. Young, 219 Or App 410, 419 (2008).

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). Vigor Indus., LLC v. Ayres, 25 Or App 795, 803 (2013). In Brown v. SAIF, 361 Or 241, 282 (2017), the court explained that the correct inquiry under ORS 656.262(6)(c) was whether the previously accepted condition (rather than the work-related injury incident) remained the major contributing cause of the claimant's disability or need for treatment of the combined condition. The court reasoned that a carrier may deny the accepted combined condition if the "otherwise compensable injury" (i.e., the medical condition that the carrier previously accepted) ceases to be the major contributing cause of the combined condition. Id.

Here, to carry its burden of proof, the employer relies on the opinions of Drs. Dewing and Harris, who examined claimant at its request, and Dr. Won, claimant's attending physician. As explained below, the medical evidence supports the employer's burden of proof.

Dr. Dewing opined that claimant had sustained a lumbar strain that combined with her preexisting condition, but that the preexisting condition was the major contributing cause of her need for treatment as of May 8, 2014, four months after the work accident. (Ex. 14-6). Reasoning that strains typically resolve within "a few months" and that claimant had "no findings such as muscular spasm or focal muscular tenderness" at the time of his examination, Dr. Dewing concluded that the "lumbar injury of January 6, 2014 had resolved." (Ex. 51-1). His opinion supports the conclusion that the accepted "lumbar strain" had resolved and, thus, ceased to be the major contributing cause of claimant's disability or need for treatment of the accepted combined low back condition.

Dr. Harris opined that claimant's accepted lumbar strain was medically stationary without permanent impairment. (Ex. 30-12). He explained, "Although [claimant] may very well have sustained a lumbar strain at the time of the work event, such injuries are expected to heal over the course of eight weeks or so, and there is no evidence an ongoing strain diagnosis is present." (Ex. 30-13). He also opined that at the time of his examination, claimant's preexisting condition was the major contributing cause of her ongoing disability and need for treatment. (Ex. 30-15). Dr. Harris concluded that claimant's lumbar strain had resolved by the time of Dr. Dewing's May 8, 2014 examination. (Ex. 48-4). Dr. Harris's opinion also supports the conclusion that the accepted "lumbar strain" ceased to be the major contributing cause of claimant's disability or need for treatment of the accepted combined low back condition.

Dr. Won opined that the "strain portion" of claimant's injury had resolved. (Ex. 38-16). His opinion also supports the employer's burden.

Claimant contends that, although the strain itself has resolved, the effects of the strain include a worsening of her preexisting degenerative conditions. However, as discussed above, the employer need only establish that the "otherwise compensable injury" component of the accepted combined condition is no longer the major contributing cause of claimant's disability or need for treatment of the accepted combined condition, when weighed against the "preexisting condition" component of the accepted combined low back condition. Ayres, 25 Or App at 803. Because the "lumbar strain" is the only accepted "otherwise compensable injury" component of the accepted combined condition, we weigh only the strain against claimant's "pre-existing non-compensable lumbar degenerative arthritic conditions/spondylosis from L2-3 to L4-5." See Brown, 361 Or at 283.

In sum, the medical evidence addressing the accepted lumbar strain unanimously supports the conclusion that the strain resolved and, thus, ceased to be the major contributing cause of claimant's disability or need for treatment of the combined low back condition. Accordingly, we reverse that...