In re Comp. of Dedmore-Melton, WCB Case No. 18-00691

• Decision Date: 26 July 2019
• Docket Number: WCB Case No. 18-04139,WCB Case No. 18-00691
• Parties: In the Matter of the Compensation of CRYSTAL R. DEDMORE-MELTON, Claimant
• Court: Oregon Workers' Compensation Division

71 Van Natta 828

In the Matter of the Compensation of CRYSTAL R. DEDMORE-MELTON, Claimant

WCB Case No. 18-00691
WCB Case No. 18-04139

Oregon Workers' Compensation Division

July 26, 2019

ORDER ON REVIEW
Dunn & Roy PC, Claimant Attorneys
Gress, Clark, Young, & Schoepper, Defense Attorneys

Reviewing Panel: Members Curey and Ousey.

Claimant requests review of Administrative Law Judge (ALJ) Somers's order that: (1) upheld the self-insured employer's denial of claimant's new/omitted medical condition claim for spasmodic torticollis (cervical dystonia); and (2) upheld the employer's denial of claimant's new/omitted medical condition claim for temporomandibular joint (TMJ) disorder. On review, the issue is compensability.

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

The ALJ determined that claimant did not establish the existence of the claimed cervical dystonia condition. The ALJ also reasoned that, if the claimed TMJ disorder was proven to exist, it is properly analyzed as a "consequential condition" under ORS 656.005(7)(a)(A). Applying the "major contributing cause" standard for a "consequential condition," the ALJ concluded that claimant had not met her statutory burden.¹

On review, claimant contends that the opinions of Dr. Taylor, a treating neurologist, persuasively establish both the existence of a cervical dystonia condition and that the condition is causally related to her compensable injury. Concerning her claim for a TMJ disorder, claimant argues that the opinions of Drs. Parker and Paxton persuasively establish both the existence of that condition and that her compensable injury is its major contributing cause of the claimed condition. For the reasons discussed below, we agree with the ALJ's conclusion that the claimed conditions are not compensable.

Claimant must establish the existence of the claimed new/omitted medical conditions as a fact necessary to establish the compensability of those claims. ORS 656.266(1); Robert D. Hanington, 68 Van Natta 496, 498 (2016) (applying Graves to a new/omitted medical condition claim based on a "consequential

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condition" theory); Maureen Y. Graves, 57 Van Natta 2380, 2381 (2005). If the conditions exist and arose directly, even if belatedly, from the industrial accident, the material contributing cause standard applies to determine compensability. Albany General Hosp. v. Gasperino, 113 Or App 411, 414 (1992). On the other hand, if the conditions are separate conditions that arose from the compensable injury, they are analyzed as "consequential conditions." Id. For example, a back strain caused by altered gait resulting from a compensable foot injury would be a consequential condition. Fred Meyer, Inc. v. Crompton, 150 Or App 531, 536 (1997); Gasperino, 113 Or App at 415 n 2. A consequential condition is compensable if claimant establishes that the compensable work injury (i.e., an accepted condition) is the major contributing cause of the consequential condition. ORS 656.005(7)(a)(A); ORS 656.266(1); Brown v. SAIF, 361 Or 241 (2017); English v. Liberty Northwest Ins. Co., 271 Or App 211, 215 (2015).

Because the record in this case reflects disagreement among medical experts, questions concerning the existence and causation of the claimed conditions and issues of causation present complex medical questions that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279, 282 (1993); Mathew C. Aufmuth, 62 Van Natta 1823, 1825 (2010).

Here, as further discussed below, we agree with the ALJ's conclusion that the medical evidence does not preponderate in favor of a conclusion that the claimed cervical dystonia and TMJ disorder are compensable.

Cervical Dystonia

The ALJ rejected claimant's argument that Dr. Taylor's opinion persuasively establishes compensability of a cervical dystonia condition. The ALJ reasoned that Dr. Taylor provided contradictory opinions both as to whether claimant has cervical dystonia and, if she does, the cause of such a condition. In light of the contradictory nature of Dr. Taylor's opinion, the ALJ found the opinions of Drs. Lorber and Almaraz more persuasive. Those physicians concluded that claimant did not have cervical dystonia.

On review, claimant renews her argument that Dr. Taylor's opinions persuasively establish both the existence and causal relationship necessary to recover benefits for the claimed cervical dystonia condition. Claimant asserts that Dr. Taylor's opinions are not contradictory but, rather, are "carefully considered" and "nuanced." After conducting our de novo review, we conclude that, even if we found that the claimed cervical dystonia condition existed, the record does not persuasively establish that the applicable standard of compensability has been met. We reason as follows.

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Whether compensability of the claimed cervical dystonia condition is subject to the material contributing cause standard or the major contributing cause standard requires us to determine whether the condition is a separate condition that arose as a consequence of claimant's injury or condition. Arms v. SAIF, 292 Or App 217, 225 (2018) (citing Crompton, 150 Or App at 536). If a claimed condition is a separate condition that arose as a consequence of the...