MATTER OF ALLEN, 60 Van Natta 1423 (Or. Work. Comp. 6/17/2008)

• Decision Date: 17 June 2008
• Docket Number: WCB Case No. 07-02016.
• Citation: 60 Van Natta 1423
• Parties: In the Matter of the Compensation of HOWARD L. ALLEN, Claimant.
• Court: Oregon Workers' Compensation Division

Page 1423

60 Van Natta 1423

In the Matter of the Compensation of HOWARD L. ALLEN, Claimant.

WCB Case No. 07-02016.

Oregon Workers' Compensation Division.

June 17, 2008.

Ransom Gilbertson Martin et al, Claimant Attorneys.

Reinisch MacKenzie PC, Defense Attorneys.

Reviewing Panel: Members Langer and Biehl.

ORDER ON REVIEW

Claimant requests review of Administrative Law Judge (ALJ) Pardington's order that upheld the insurer's denial of his occupational disease claim for a right shoulder condition. On review, the issue is compensability.

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

The ALJ upheld the insurer's denial of claimant's occupational disease claim, finding the medical opinions of the treating physicians, Drs. Rao and Harpole, insufficient to satisfy claimant's burden of proof under ORS 656.802(2)(b).¹ Specifically, the ALJ concluded that Dr. Harpole's opinion contained unexplained inconsistencies, whereas Dr. Rao's opinion was conclusory.

On review, claimant contends that, contrary to the ALJ's determination, Drs. Rao and Harpole provided well reasoned, sufficiently explained opinions based on accurate histories, and persuasively establish compensability of his right shoulder condition. For the following reasons, we agree with the ALJ's analysis of the medical evidence.

Because this claim is based on the worsening of a preexisting disease or condition, claimant must prove that employment conditions were the major contributing cause of both the combined condition and of a pathological worsening of the disease. ORS 656.266(1); ORS 656.802(2)(b); Danilo E. Delrosario, 58 Van Natta 2902, 2902-03 (2006).

In light of the conflicting medical evidence and the possible alternative causes of claimant's condition, the causation issue presents a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279, 283 (1993); Delrosario, 58 Van Natta at 2903. Absent persuasive reasons to the contrary, we generally give greater weight to the opinion of the claimant's attending physician. Weiland v. SAIF, 63 Or App 810 (1983); Floyd E. Mitchell, 56 Van Natta 1940, 1941-42 (2004). However, we properly may or may not give greater weight to the opinion of the treating physician, depending on the record in each case. Dillon v. Whirlpool Corp., 172 Or App 484, 498 (2001); Michael J. Perkins, 56 Van Natta 1744, 1745 (2004).

Regarding Dr. Harpole's opinion, claimant contends that "close consideration of the medical context shows Dr. Harpole's opinion to be consistent." (Appellant's Brief, p. 1). After reviewing Dr. Harpole's opinion in its entirety, we disagree.

In a May 14, 2007 concurrence report, Dr. Harpole stated that claimant had a severe strain that was likely aggravating and accelerating an underlying degenerative process, and that claimant's work activities were the major contributing cause of claimant's "overall combined condition." (Ex. 32-2). Then, in a June 6, 2007 letter, claimant's attorney requested clarification from Dr. Harpole as follows: "You have already stated that you believe the repetitive job activities accelerated the underlying arthritis. You believe that the work activities pathologically worsened his underlying arthritic condition." (Ex. 33b). Dr. Harpole responded that he did not concur with that statement, adding "[claimant] had long standing changes on x-rays that obviously predated his injury." (Id.) In an August 13, 2007 deposition, Dr. Harpole then agreed, without further explanation, that "repetitive use pathologically changed" claimant's underlying arthritis, causing it to accelerate. (Ex. 36-5).

Claimant notes that the June 6, 2007 "nonconcurrence" letter did not specifically address the right shoulder AC joint, and that the doctor's comment that "[claimant] had long standing changes on x-rays that obviously predated his injury," does not address an occupational disease. (Id.; emphasis added). However, we decline to interpret the June 6, 2007 letter in such a manner. Rather, taken in context, and given claimant's contemporaneous treatment history and diagnosed conditions, we find that the letter refers to claimant's right shoulder AC joint arthritis condition, and that Dr. Harpole was of the opinion that the work activities did not pathologically worsen this underlying arthritic condition. Dr. Harpole's use of the term "injury" does not make his nonconcurrence regarding a pathological worsening somehow insufficient to address an occupational disease.

Under these circumstances, Dr. Harpole's opinion is internally inconsistent. Because the record provides no explanation for the inconsistencies, we conclude that Dr. Harpole's opinion is unpersuasive and insufficient to establish compensability of the claimed right shoulder condition. See Bettye C. Havener, 56 Van Natta 1091 (2004) (finding opinion...