Jackson County v. Wehren

• Decision Date: 19 February 2003
• Parties: In the Matter of the Compensation of Christopher J. Wehren, Claimant. JACKSON COUNTY, Petitioner, v. Christopher J. WEHREN, Respondent.
• Court: Oregon Court of Appeals

63 P.3d 1233

186 Or. App. 555

In the Matter of the Compensation of Christopher J. Wehren, Claimant.

JACKSON COUNTY, Petitioner, v. Christopher J. WEHREN, Respondent.

00--01486; A114211.

Court of Appeals of Oregon.

Argued and Submitted October 30, 2002.

Decided February 19, 2003.

George W. Goodman, McMinnville, argued the cause for petitioner. With him on the opening brief were James W. Moller and Cummins, Goodman, Fish, Denley & Vickers, P.C. With him on the reply brief was James W. Moller.

Robert F. Webber, Medford, argued the cause for respondent. With him on the brief was Black, Chapman, Webber, Stevens & Petersen.

Before EDMONDS, Presiding Judge, and KISTLER and SCHUMAN, Judges.

SCHUMAN, J.

Faced with conflicting medical opinions as to whether claimant's recurrent neck and shoulder pain resulted in major part from an earlier compensable injury, the Workers' Compensation Board (board) accepted the opinion that it did. On judicial review, employer argues that the accepted opinion was not based on a sufficiently complete medical history and that it did not adequately evaluate the relative contribution of all potentially causative events. We review legal issues for errors of law and factual issues for substantial evidence. ORS 183.482(8)(a), (c). Substantial evidence supports a finding when the record, viewed as a whole, permits a reasonable person to make that finding. ORS 183.482(8)(c); Garcia v. Boise Cascade Corp., 309 Or. 292, 295, 787 P.2d 884 (1990). We affirm.

The following facts are not disputed. Claimant worked for Jackson County on a road crew. He spent the day of November 2, 1992, digging post holes. The next morning, he experienced neck pain. During treatment, he complained of pain in his neck as well as in his left and right shoulders. Employer accepted the disabling cervical strain as a compensable injury.

About one year later, in September 1993, claimant attempted to hang himself. Standing on the ground with one end of an electrical cord attached to a tree limb and the other around his neck, he fell forward. A friend who was present at the time quickly cut him loose. After three days in the hospital for psychiatric observation and treatment, he was discharged with a diagnosis of abrasion and neck strain.

A few months later, in January 1994, claimant again spent time at work digging post holes and again experienced pain in the aftermath. He filed a claim for a new injury. The claim was denied and, after physical therapy, he returned to work without further impairment. A year passed, and once again, in March 1995, claimant reported a recurrence of neck symptoms. In October, Dr. Thompson examined claimant for employer. Based on an exam and an oral history that did not include the attempted hanging, Thompson diagnosed neck strain and identified the 1992 compensable injury as the major contributing cause. However, once he learned of the attempted hanging, he changed his opinion and concluded not only that the hanging incident in 1993 was the major contributing cause of claimant's neck problems but that the original 1992 problems were caused in major part by "idiopathic torticollis," that is, a twisted neck of unknown cause.

The incident giving rise to the present claim occurred in September 1998, after a recurrence of symptoms following repetitive activity at work. Claimant's treating physician diagnosed a chronic cervical strain and referred claimant to Dr. Grant for follow-up. At that point, conflicting medical opinions began to emerge. Dr. Woodward, for employer, described claimant's condition as idiopathic chronic neck pain and stated that it was not related to the 1992 incident or other work activities. Grant then examined claimant, took an oral history, and diagnosed "myofascial pain syndrome," caused in major part by the compensable 1992 neck strain. He described that condition as follows:

"Myofascial pain syndrome is a chronic muscular problem usually brought on by an acute injury or a chronic overuse type of injury. It is different from a muscular strain in that a strain is usually self-limiting, while as myofascial pain problems may extend over lengthy periods of time. The persistence of myofascial pain problems is brought about by what is called a `myofascial cycle.' An injury or overuse will initially cause pain, which provokes muscular tightness. The tightness over a period of time causes further pain which again provokes tightness. This self-perpetuating cycle is what can cause myofascial difficulties to last for months or even years."

Myofascial pain syndrome is diagnosed when palpating so-called "trigger points" causes pain at the points themselves and elsewhere as well. Woodward, for employer, submitted a report challenging Grant's diagnosis and referring to "myofascial pain syndrome" as a "contentious" diagnosis in the medical community. Grant replied with a lengthy point-by-point defense, arguing that Woodward's opinions were outdated and citing a plethora of texts and journal articles supporting his own views. On February 14, 2000, claimant asked employer to accept "myofascial pain syndrome." Employer denied the request.

A hearing ensued. The administrative law judge (ALJ) evaluated all of the medical opinions and found that Grant's was the most persuasive. Employer appealed to the board, attacking the ALJ's reliance on Grant's opinion for two asserted defects: first, that the ALJ erred in finding that Grant's opinion was based on a complete medical history; and second, that the ALJ did not sufficiently address other potential causes of claimant's condition before deciding that it was caused in major part by myofascial pain syndrome stemming from the 1992 injury. The board affirmed and, on reconsideration, reaffirmed.

Our resolution of this case is governed by several precepts. First, claimant has the burden of proving that his compensable 1992 injury is the major contributing cause of his current condition, that is, the current condition is a "consequential condition" under ORS 656.005(7)(a)(A). State Farm Ins. Co. v. Lyda, 150 Or.App. 554, 559, 946 P.2d 685 (1997), rev. den., 327 Or. 82, 961 P.2d 216 (1998). Second, determining causation is a complex medical question that can be resolved only by expert medical opinion. Uris v. Compensation Department, 247 Or. 420, 424, 427 P.2d 753 (1967); Barnett v. SAIF, 122 Or.App. 279, 283, 857 P.2d 228 (1993). Third, to be persuasive, the opinion regarding the "major contributing cause" of a consequential condition must evaluate the relative contribution of other potential causes to determine whether the compensable injury is primary. Dietz v. Ramuda, 130 Or.App. 397, 401, 882 P.2d 618 (1994) (stating rule regarding combined conditions); SAIF v. Willcutt, 160 Or.App. 568, 574, 981 P.2d 1288 (1999) (applying Dietz to consequential conditions). Fourth, when medical experts disagree, the board should place more emphasis on opinions that are well reasoned and based on the most complete relevant information. Fifth, we review the board's finding that an expert opinion evaluates alternative potential causes and is based on sufficiently complete information for substantial evidence. ORS 183.482(8)(c). Sixth, if there are doctors on both sides of a medical issue, whichever way the board finds the facts will probably have substantial evidentiary support, and we will reverse the board "only when the credible evidence apparently weighs overwhelmingly in favor of one finding and the board finds the other without giving a persuasive explanation." Armstrong v. Asten-Hill Co., 90 Or.App. 200, 206, 752 P.2d 312 (1988).

Before this court, employer renews its attack on the board's acceptance of Grant's opinion instead of Thompson's. In particular, employer argues that no substantial evidence supports the board's conclusion that Grant had a complete and accurate history when he rendered his opinion that the 1992 incident was the major contributing cause of claimant's 1998 condition; that no substantial evidence supports the board's conclusion that Grant properly evaluated the various potential contributing causes of the 1998 condition; and that the board erred in discounting Thompson's opinion. Under the substantive principles and standards of review described above, we conclude that none of those criticisms has merit.

The board made the following findings regarding the completeness of the history on which Grant based his opinion:

"During Dr. Grant's May 27, 1999 examination of claimant, he

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