In re Knight, WCB Case No. 10-03838

• Decision Date: 03 June 2011
• Docket Number: WCB Case No. 10-03838
• Parties: In the Matter of the Compensation of GARY S. KNIGHT, Claimant
• Court: Oregon Workers' Compensation Division

63 Van Natta 1206

In the Matter of the Compensation of GARY S. KNIGHT, Claimant

WCB Case No. 10-03838

Oregon Workers' Compensation Division

Dated: June 3, 2011

ORDER ON REVIEW Dale C Johnson, Claimant Attorneys Bruce A Bornholdt, SAIF Legal Salem, Defense Attorneys

Reviewing Panel: Members Langer, Weddell, and Herman. Member Langer dissents.

The SAIF Corporation requests review of Administrative Law Judge (ALJ) Otto's order that set aside its partial denial of claimant's injury claim for a post-concussion syndrome condition. On review, the issue is compensability.

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

On March 25, 2007, claimant sustained a compensable injury while employed as a police officer. While pursuing a suspect, claimant was struck on the left side of his head, above his ear, with a 14 inch long, 4 inch by 6 inch, wooden block. He did not lose consciousness, although he felt "rummy" and a little confused before continuing the pursuit and apprehending the suspect. Claimant treated in the emergency room later that day and was diagnosed with cervical strain and scalp contusion. (Ex. 4). On March 27, 2007, he sought treatment for continuing episodes of dizziness, nausea, and headaches. (Ex. 6).

Dr. Oglesbay, D.O., has been claimant's treating physician since 2005 and first treated him regarding this 2007 injury on April 10, 2007. At that time, Dr. Oglesbay diagnosed cervical strain, with a differential diagnosis of a mild concussion. (Ex. 8).

On May 1, 2007, SAIF accepted "scalp contusion, right hand abrasion, and cervical strain." (Ex. 10).

Dr. Oglesbay continued to treat claimant, including treatment for headaches, and eventually diagnosed concussion and post-concussion syndrome. (Exs. 13, 17, 19, 20, 22, 25, 27, 28, 31, 36, 37, 40, 41, 43, 44, 45, 46, 47, 49, 50, 51, 52). In March 2010, claimant requested that SAIF accept concussion and post-concussion syndrome. (Ex. 51).

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On May 6, 2010, Dr. Wicher, Ph.D., and Dr. Green, neurologist, examined claimant on behalf of SAIF. (Exs. 55, 56). Dr. Wicher opined that claimant had sustained neither a concussion nor a post-concussion syndrome as a result of the work injury. Dr. Green opined that claimant sustained a mild concussion as a result of the blow to his head; however, he found no evidence of a post-concussion syndrome.

On May 19, 2010, SAIF accepted "mild concussion" as part of the March 25, 2007 injury claim. (Ex. 57). That same date, it denied the claim for post-concussion syndrome. (Ex. 58).

The ALJ found Dr. Oglesbay's opinion most persuasive, reasoning that he had the best understanding of claimant's medical history, his clinical presentation (before and after the work injury), the mechanism of injury, and his subjective complaints. The ALJ determined that Dr. Oglesbay persuasively explained his opinions and considered all of the possible contributing factors before concluding that the work injury was the major contributing cause of the post-concussion syndrome. Accordingly, based on Dr. Oglesbay's opinion, the ALJ found that claimant established compensability of his post-concussion syndrome.

To prove the compensability of an injury, claimant must show that the work incident was a material contributing cause of his disability or need for treatment. ORS 656.005(7)(a); ORS 656.266; Albany Gen. Hosp. v. Gasperino, 113 Or App 411, 415 (1992). The issue is whether claimant sustained a post-concussion syndrome as a result of his work activity; i.e., being struck in the head with a 4 inch by 6 inch wooden block while pursuing a suspect during the course of his employment as a police officer.

Given the potential causes for claimant's condition, this causation issue presents a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279, 283 (1993); Randy M. Manning, 59 Van Natta 694, 695 (2007). Where there is a dispute between medical experts, we give more weight to those opinions that are both well reasoned and based on complete information. Somers v. SAIF, 77 Or App 259, 263 (1986); Linda Patton, 60 Van Natta 579, 582 (2008).

Absent persuasive reasons to the contrary, we generally give greater weight to the opinion of an attending physician. Weiland v. SAIF, 63 Or App 810, 814 (1983); Terry L. George, 61 Van Natta 1539, 1544 (2009). We accord such deference because, generally, the attending physician has had a better opportunity to observe and evaluate a claimant's condition over an extended period of time.

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George, 61 Van Natta at 1544; Angela S. Breitenstein, 56 Van Natta 174, 177 (2004). However, we may properly give greater or lesser weight to the opinion of a treating physician, depending on the record in each case. Dillon v. Whirlpool Corp., 172 Or App 484, 489 (2001); George, 61 Van Natta at 1544; Michael J. Perkins, 56 Van Natta 1744, 1745 (2004).

Here, for the reasons expressed by the ALJ, we find Dr. Oglesbay's opinion most persuasive. He has been claimant's treating physician since 2005 and had the benefit of seeing him on repeated visits both before and after the 2007 work incident and was able to observe his presentation and response to treatment over an extended period. After considering all of the potential causes, including elimination of the possibility of multiple sclerosis shown on MRI scans, Dr. Oglesbay concluded that claimant's work incident was the major contributing cause of the disputed condition. (Exs. 44, 45, 65).

We disagree with SAIF's and the dissent's assertion that the causation issue requires expert analysis rather than external observation. See Allie v. SAIF, 79 Or App 284, 287 (1986) (no special deference conferred to a treating physician's opinion where a case involves expert analysis rather than external observation); Richard S. Burns, 61 Van Natta 1599, 1600 (2009) (same). Dr. Oglesbay's opinion relied on his knowledge of claimant's presentation before the head injury and his observation of changes following the injury, including personality changes, depression, mood swings, concentration problems, cognitive changes, and chronic headaches. He also relied on claimant's response to treatment over an extended period. Dr. Oglesbay explained that claimant's personality changes were profound, presented in a timely fashion after his head injury, and did not resolve. (Ex. 65). Thus, we...