In the Matter of The Comp. of Catherine E. Reid v. Saif Corp.., 0703804; A142321.
| Decision Date | 16 March 2011 |
| Docket Number | 0703804; A142321. |
| Citation | 241 Or.App. 496,250 P.3d 444 |
| Parties | In the Matter of the Compensation of Catherine E. Reid, Claimant.Catherine E. REID, Petitioner,v.SAIF CORPORATION and PeaceHealth, Respondents. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Christopher D. Moore, Eugene, argued the cause and filed the briefs for petitioner.Julene M. Quinn argued the cause and filed the brief for respondents.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.
Claimant seeks review of an order of the Workers' Compensation Board, contending that the board erred in upholding SAIF's denial of her combined condition involving the cervical spine. She contends that the board committed legal error when it failed to include all of her compensable injuries when it determined that compensable injuries had ceased to be the major contributing cause of her need for treatment. We affirm.
The facts are undisputed. Claimant works for SAIF's insured, PeaceHealth. Beginning some time in 2003, she experienced occasional neck stiffness and pain at work when she rotated her neck or contorted it in unusual positions, but she did not seek medical treatment. However, she did seek treatment after an incident in April 2004; while attempting to remove a gown from under a sedated and nonresponsive patient, she felt a sudden shocking pain in her neck, accompanied by a rubber-band-like pop. Claimant subsequently developed stiffness, headaches, and right upper extremity pain. The pain after this incident was different in character from the pain before it.
SAIF accepted a claim for a nondisabling cervical strain. Despite claimant's pre–2004 neck pain and stiffness, SAIF did not accept the claim as a combined condition. Through conservative treatment, claimant's symptoms improved, but they did not resolve completely. In October 2004, Dr. Peterson, one of claimant's treating physicians, stated his opinion that claimant would be medically stationary as of October 14, 2004, without any permanent impairment.
In February 2005, after an incident in which she had to hold down a patient, claimant experienced increased neck symptoms at work. She received treatment for her neck through 2005. An MRI in May 2005 revealed a minimal annular bulge at C5–6 and mild disc desiccation at all cervical levels. An MRI in February 2006 showed no further changes.
Claimant's symptoms continued, and in February 2006, claimant's treating physician referred her to Dr. Keiper, a neurosurgeon, for consultation. Keiper diagnosed a “C5–6 disc injury.” Claimant had a decigrams in October 2006, which was positive for problems at the C5–6 level; a CT scan also revealed disc bulging at C4–5 and C5–6. Claimant filed a new/omitted condition claim for C5–6 disc injury, which SAIF denied on June 8, 2007, as “not compensably related.”
Subsequently, SAIF also issued a modified notice of acceptance, revising the 2004 acceptance to accept claimant's cervical strain as a combined condition. SAIF explained that, beginning on April 7, 2004, the date of the injury, claimant's accepted cervical strain had combined with one or more preexisting conditions, including cervical disc disease. At the same time that SAIF accepted the 2004 combined condition, it simultaneously denied the combined condition on and after June 13, 2005, explaining that, as of June 13, 2005, the accepted injury was no longer the major contributing cause of the combined cervical condition.
Claimant filed requests for hearing on the denial of the “C5–6 disc injury” and the denial of her combined condition. The administrative law judge (ALJ) and the board both determined that claimant's C5–6 disc injury is compensable, and that determination is not challenged on review. We focus on SAIF's denial of the combined condition, which is the subject of the current dispute.
Under ORS 656.005(7)(a)(B),
“[i]f an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition.”
Thus, under the statute, a combined condition— i.e., one in which an “otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment”—is subject to the higher, major contributing cause, standard of proof, in contrast to the “material contributing cause” standard for other work-related injuries. Hopkins v. SAIF, 349 Or. 348, 351, 245 P.3d 90 (2010).
Under ORS 656.005(24)(a), a “preexisting condition” is defined as
“any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:
“(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis; and
“(B)(i) In claims for an initial injury or omitted condition, the diagnosis or treatment precedes the initial injury;
“(ii) In claims for a new medical condition, the diagnosis or treatment precedes the onset of the new medical condition; or
“(iii) In claims for a worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment precedes the onset of the worsened condition.”
As a general rule, a preexisting condition must have been previously diagnosed or treated before it will be considered a preexisting condition. However, a preexisting arthritis or arthritic condition will be considered a “preexisting condition” within the meaning of ORS 656.005(24)(a) whether or not it has been diagnosed or treated at the time of injury.
After this case was submitted, in Hopkins, 349 Or. at 364, 245 P.3d 90, the Supreme Court explained that the term “arthritis” as used in ORS 656.005(24)(a)
“mean[s] the inflammation of one or more joints, due to infectious, metabolic, or constitutional causes, and resulting in breakdown, degeneration, or structural change.”
The court stated, further, that an employer must establish by expert testimony that the claimant suffers from “inflammation of whatever joint or joints it contends are affected by the arthritic condition.” Id. at 363, 245 P.3d 90.
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