In re Comp. of Wood, WCB Case No. 20-00745
| Decision Date | 16 July 2021 |
| Docket Number | WCB Case No. 20-00745 |
| Citation | 73 Van Natta 557 |
| Parties | In the Matter of the Compensation of RICHARD WOOD, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
DiBartolomeo Law Office PC, Claimant Attorneys
Reviewing Panel: Members Ousey and Curey.
Claimant requests review of that portion of Administrative Law Judge (ALJ) Jacobson's order that affirmed the SAIF Corporation's denial of claimant's new/ omitted medical condition claim for a C6-7 disc condition. On review, the issue is compensability.
We adopt and affirm the ALJ's order with the following supplementation.
Claimant, a log truck driver, was injured on July 31, 2019, while "unwrapping" a truckload of logs. (Ex. 6). As a result of this incident, SAIF accepted cervical and thoracic strains. (Ex. 11).
Two days following his injury, Dr. Shin, an urgent care physician, evaluated claimant. (Ex. 7). Claimant reported that his injury occurred after pulling on a strap, resulting in the sudden onset of back pain. (Ex. 7-1). Dr. Shin diagnosed cervical and thoracic strains. (Id.)
Dr. McCown, a chiropractor, evaluated claimant on August 5, 2019. (Ex. 8B). Claimant reported right-sided shoulder and thoracic pain, which radiated into his right shoulder and arm. (Ex. 8B-1).
In an August 12, 2019, recorded statement, claimant stated that he was injured while he was removing a "wrapper" from a truckload of logs. (Ex. 9C-10). When asked by the investigator whether he bumped into the truck or hit anything during the incident, claimant replied, (Id.) Claimant stated that after the injury occurred, he "shrugged it off" and worked a full shift the following day. (Ex. 9C-9). He was not aware of anyone witnessing his injury, and he indicated that no one would have noticed it unless he "were to fall down or something like that." (Ex. 9C-13). Claimant said that the injury resulted in upper back pain, which progressively worsened for several days following the injury, and right forearm pain and tingling. (Ex. 9C-12). He reported that his pain had significantly improved since his injury, although he continued to experience "a little" tingling and numbness in his right arm and hand. (Ex. 9C-13, -15).
On August 16, 2019, claimant told Dr. Shin that his pain was nearly resolved. (Ex. 10-1). Dr. Shin noted no objective findings of injury, and he released claimant to regular work. (Id.) On September 16, 2019, claimant told Dr. McCown that his pain had generally improved, although riding in vehicles increased his neck and arm pain. (Ex. 11G-1). Claimant returned to Dr. McCown on September 20, 2019, and reported that the majority of his pain was now in his right arm. (Ex. 11H-1).
On November 5, 2019, claimant was evaluated by Dr. Cunningham, an orthopedist, at the employer's request. (Ex. 17). Dr. Cunningham ultimately opined that claimant's C6-7 disc extrusion and nerve impingement were not materially related to his July 2019 work injury, reasoning that claimant's history of symptoms and mechanism of injury were inconsistent with a work-related disc herniation. (Ex. 23-2).
A November 27, 2019, MRI showed right C7 impingement from a C6-7 disc extrusion. (Ex. 20-2).
Claimant began treating with Dr. McCreight, a family medicine provider, on December 6, 2019. (Ex. 22). Concluding that claimant's C6-7 disc condition and related need for medical treatment were caused in major part by his July 2019 work injury, Dr. McCreight disagreed with Dr. Cunningham's opinion. (Ex. 37-3, -4).
Claimant filed a new/omitted medical condition claim for C6-7 disc extrusion and nerve impingement, which SAIF denied. (Exs. 21, 27). Claimant requested a hearing.
At hearing, claimant testified that his July 2019 injury event caused him to fall to the ground. (Tr. 11). He further testified that, over time, his neck and arm symptoms had remained "about the same" since the injury. (Tr. 15).
In upholding SAIF's denial, the ALJ found Dr. McCreight's opinion unpersuasive because it was based on an unreliable history. On review, claimant asserts that Dr. McCreight's history was based on a sufficiently accurate history, and that his opinion persuasively establishes the compensability of claimant's "C6-7 disc extrusion and nerve impingement" condition. For the following reasons, we disagree with claimant's assertion.
Claimant has the initial burden to prove that the work event was a material contributing cause of the disability/need for treatment of the "C6-7 disc extrusion and nerve impingement" condition.1 See ORS 656.005(7)(a); ORS 656.266(1); Betty J. King, 58 Van Natta 977, 977 (2006). In light of the conflicting medical opinions, the causation issue presents a complex medical question that must be resolved by expert medical evidence. See Barnett v. SAIF, 122 Or App 279 (1993).
In evaluating the credibility of a witness's testimony, we generally defer to an ALJ's demeanor-based credibility findings because the ALJ had the unique opportunity to observe the claimant. See Erck v. Brown Oldsmobile, 311 Or 519, 526 (1991). However, where, as here, the credibility issue concerns the substance of a witness's testimony, we are equally qualified to make our own determination.2 Coastal Farm Supply v. Hultberg, 84 Or App 282, 285 (1987).
To establish compensability, claimant relies on Dr. McCreight's opinion. However, we find that Dr. McCreight's opinion was based on an unreliable history with respect to claimant's mechanism of injury and the development of his symptoms.
From August 2019 to December 2019, claimant described his injury to medical providers without indicating that he fell to the ground during the event. (Exs. 7-1, 8B-1, 15-1, 17-4, 22-1). Additionally, during his August 2019 recorded statement, claimant specifically denied that he fell. (Ex. 9C-13). It was not until his January 17, 2020, visit with Dr. McCreight, over five months following his injury, that claimant reported that his injury involved a fall. (Ex. 29-1). We find this report, and claimant's testimony, to be inconsistent with the contemporaneous medical records and with his August 2019 recorded statement. Further, claimant's statement that he initially "shrugged [the injury] off," along with the fact that he finished his shift after the injury and worked the following day, is inconsistent with his later description of the severity of the incident. (Exs. 9C-9, 15-1, 29-1; Tr. 19).
Moreover, Dr. McCreight's understanding that claimant developed constant radicular symptoms following his injury is not supported in the contemporaneous records. (Ex. 37-2, -3). Although claimant reported right arm and hand pain and numbness in the days following his injury, by mid-August these symptoms had largely resolved. (Exs. 8B-1, 9C-12, -15, 10-1, 17-4). Additionally, chart notes from August 7, 2019 through September 11, 2019, do not include any reference to complaints of right arm or hand symptoms. (Exs. 8C, 9, 9A, 9B, 9D, 10, 10A-F). Such symptoms are not again noted in the record until mid- to late-September 2019, over two months following the work injury. (Exs. 11G-1, 11H-1). Thus, the contemporaneous records indicate that claimant experienced an onset of right arm and hand symptoms in the days following his injury, which largely resolved over the next several weeks, and then worsened in mid- to late-September 2019.
Dr. McCreight expressly relied on an understanding that claimant fell as a result of his injury, and that the injury was more violent and forceful than had been documented in the charting by Drs. Shin and McCown. (Ex. 28-1). Dr. McCreight also believed, based on claimant's account, that the right arm symptoms were...
To continue reading
Request your trial