Manous v. Argonaut Ins.

• Jurisdiction: Oregon
• Parties: In the Matter of the Compensation of Gary Manous, Claimant. Gary MANOUS, Petitioner, v. ARGONAUT INSURANCE and E.A. Schenck Construction Co., Respondents. WCB 83-07482; CA A36414.
• Citation: Manous v. Argonaut Ins., 719 P.2d 1318, 79 Or.App. 645 (Or. App. 1986)
• Court: Oregon Court of Appeals
• Decision Date: 04 June 1986

Page 1318

719 P.2d 1318

79 Or.App. 645

In the Matter of the Compensation of Gary Manous, Claimant Gary MANOUS, Petitioner, v. ARGONAUT INSURANCE and E.A. Schenck Construction Co., Respondents.

WCB 83-07482; CA A36414.

Court of Appeals of Oregon.

Argued and Submitted Feb. 26, 1986.

Decided June 4, 1986.

Ronald L. Bohy, Salem, argued the cause and filed brief for petitioner.

LaVonne Reimer, Portland, argued the cause for respondents. With her on brief was Lindsay, Hart, Neil & Weigler, Portland.

Before RICHARDSON, P.J., and WARDEN and WARREN, JJ.

WARDEN, Judge.

In this workers' compensation case, claimant seeks judicial review of a Workers' Compensation Board order which reversed the referee and found that he had suffered a new injury rather than an aggravation of a compensable condition. We reverse.

Claimant suffered a compensable on-the-job low back sprain in December, 1979. Although he was found to be medically stationary by March, 1980, he continued to suffer moderate back pain. He was released for light work in April, 1980, and was advised to avoid repetitive lifting, bending and stooping. In June, 1980, he was diagnosed as suffering chronic low back strain and was placed on a vocational assessment program. The claim was closed in September, 1980, by a determination order which awarded him 5 percent unscheduled permanent partial disability.

Claimant later exacerbated his condition by lifting a heavy box while working at a sporting goods store, and the claim was reopened in March, 1982. Examining physicians concluded that he had a mild chronic cervical and lumbar sprain. He suffered recurrent neck pain, which was exacerbated by certain activities; lumbar pain was also intermittent and increased with certain activities. No physical impairment was noted, but he was considered disabled by mild recurrent pain. A referee found that he had suffered an aggravation of his earlier compensable injury and awarded an additional 10 percent unscheduled permanent partial disability in August, 1982. ¹

Although he did not seek further medical treatment, claimant continued to suffer chronic back pain. On August 14, 1983, while on a fishing trip, he slipped and fell to his knees while carrying some firewood up a steep slope. He felt an immediate sharp, stabbing pain in his back, which he testified was identical to, but more severe than, his original injury. He sought treatment from Dr. Urban, a chiropractor, who reported that the injury was an aggravation of the previous compensable injury and represented a worsening of the underlying condition.

Respondent denied the aggravation claim, and a hearing was held in November, 1984. Relying on Grable v. Weyerhaeuser Co., 291 Or. 387, 631 P.2d 768 (1981), the referee found that claimant's on-the-job injury was a material contributing cause of his worsened condition. On review, the Board reversed, finding that claimant had suffered a new injury that was an intervening and superseding cause of his condition and that his industrial injury was not a material contributing cause of the worsened condition. The Board concluded that claimant had not met his burden of proof, stating:

"There is no evidence that claimant required treatment for his back condition due to residuals from the original industrial injury or that the original injury contributed in any way to the severity of claimant's condition. The only relationship between claimant's industrial injury and non-industrial injury is that the same part of his body was involved. We are not persuaded that claimant's industrial injury was a material...