MATTER OF CHILDERS, 60 Van Natta 591 (Or. Work. Comp. 3/14/2008), WCB Case No. 07-02160.
| Decision Date | 14 March 2008 |
| Docket Number | WCB Case No. 07-02160. |
| Parties | In the Matter of the Compensation of RANDALL L. CHILDERS, Claimant. |
| Court | Oregon Workers' Compensation Division |
Claimant requests review of Administrative Law Judge (ALJ) Mills' order that upheld the SAIF Corporation's denial of claimant's aggravation claim for a low back condition. On review, the issue is aggravation. We affirm.
We adopt the ALJ's "Findings of Fact," as clarified and summarized below.
In March 2002, claimant, a warehouse worker, sought medical treatment and filed a claim for a low back condition, unrelated to a specific injurious episode. In April 2002, SAIF accepted a lumbosacral strain.
An April 2002 MRI revealed degenerative disc disease at L4-5 and L5-S1, as well as a herniated disc at L4-5. Claimant received an epidural injection in May 2002, which relieved his pain. In October 2002, SAIF also accepted an L4-5 herniated disc.1
Claimant did not receive any subsequent medical treatment for his back condition until December 8, 2006.2 Claimant testified that the day before, he had chopped and moved firewood, but felt fine that evening. The following morning, he awoke in pain and sought medical treatment.
Claimant subsequently filed an aggravation claim, which SAIF denied, prompting a hearing request.
The ALJ upheld SAIF's denial. In doing so, the ALJ was not persuaded that claimant's accepted lumbosacral strain and L4-5 herniated disc conditions had actually worsened.
On review, claimant contests the ALJ's finding that he did not meet his burden of proving an actual worsening of an accepted condition. For the reasons set forth below, we affirm the ALJ's order.
Claimant bears the burden of establishing that, after his last award or arrangement of compensation, he is entitled to additional compensation for worsened conditions resulting from the original accepted injury. ORS 656.273(1); Evelyn R. Crossman, 56 Van Natta 1076, 1079 (2004). "Actual worsening" may be established either by direct proof of a pathological worsening or through inference of such worsening based on increased symptoms. Anna L. Johnson, 57 Van Natta 1396, 1398 (2005). Evidence of a symptomatic worsening may prove an aggravation claim only if a physician concludes, based on objective findings, that the underlying condition has worsened. SAIF v. Walker, 330 Or 102, 118-19 (2000); Kristin K. Dunlop, 57 Van Natta 1981, 1981 (2005).
Claimant argues that the ALJ's decision was "primarily" based on the lack of a causal connection between his compensable condition and his need for treatment, even though neither party raised causation as an issue. We disagree with that characterization.
To establish a compensable aggravation, claimant must first establish an "actual worsening" of the compensable condition supported by objective medical findings. ORS 656.273(1); James E. Penland, 58 Van Natta 138, 139 (2006). Claimant acknowledges that "medical causation is an intrinsic element of an aggravation claim" and that he is statutorily required to prove by a preponderance of the evidence an "actual worsening" of the compensable condition supported by objective findings. (Claimant's Reply Brief p. 1); see also James E. Penland, 58 Van Natta at 139; Kenneth M. Oberg, 58 Van Natta 2409, 2411 (2006). Thus, in the absence of SAIF's concession of an actual worsening of claimant's accepted conditions, claimant must satisfy that statutory requirement.3
Accordingly, we turn our attention to whether claimant proved by a preponderance of the evidence that his current condition represents an actual worsening of his accepted lumbosacral strain or L4-5 herniated disc conditions. We agree with the ALJ's conclusion that the statutory requirements for an aggravation claim have not been satisfied.
Determining whether claimant's compensable injury actually worsened is a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279 (1993); Randy M. Manning, 59 Van Natta 694, 695 (2007). We give more weight to those medical opinions that are well reasoned and based on complete information. Somers v. SAIF, 77 Or App 259, 263 (1986); Danny L. Skelton, 58 Van Natta 2083, 2083 (2006).
Here, Drs. Vessely and Wilson opined that claimant had not suffered an actual worsening, albeit with different rationales. Specifically, Dr. Vessely concluded that claimant's compensable disc herniation had resorbed and actually improved. (Ex. 26-6). These findings were based on a "side-to-side" comparison of claimant's 2002 and 2007 MRIs. The imaging study also revealed no significant nerve root compression. (Ex. 26-6, -7). As such, Dr. Vessely opined that these findings were compatible only with preexisting degenerative disease. (Ex. 26-7).
Dr. Vessely also reported no objective findings that supported an aggravation of claimant's accepted conditions. (Id.) Accordingly, Dr. Vessely opined that claimant was medically stationary or improved, and that any disability or need for treatment was related to his preexisting degenerative disease. (Ex. 26-1, -8).
Dr. Wilson likewise concluded that claimant's conditions did not amount to a worsening, but rather represented a "symptomatic flare" of a chronic condition. (Ex. 14-5). Dr. Wilson did not review the MRIs, and thus, had no further opinion beyond his original assessment that there was no pathological worsening. (Ex. 28).
Dr. Grossman, claimant's attending physician, disagreed with Drs. Vessely and Wilson, and opined that claimant's accepted conditions had actually worsened.
Dr. Grossman based this opinion on an absent ankle reflex and atrophy, as well as a marked increase in pain, limited range of motion and hypasthesia. (Ex. 27-1). Claimant avers that Dr. Grossman's opinion is more persuasive. For the reasons set forth below, we disagree.
First, Dr. Vessely provided detailed findings based on a "side-to-side" comparison of claimant's 2002 and 2007 MRIs and concluded that claimant's compensable injury had "amazingly" improved. (Ex. 26-6). Dr. Grossman did not dispute that objective evidence. Nevertheless, Dr. Grossman countered that there were "other abnormal findings related to the aggravation in spite of the improvement seen on the MRI." (Ex. 26A-1). Dr. Grossman, however, did not detail what those "abnormal findings" were and how they would refute the imaging studies, which were interpreted by Dr. Vessely to show an improvement in claimant's compensable condition. As such, we find Dr. Grossman's opinion conclusory and unpersuasive. See Corey W. Dorst, 57 Van Natta 898, 901 (2005) ().
Claimant argues that Dr. Grossman's finding of an absent ankle reflex and atrophy, as well as a marked increase in pain, limited range of motion, and hypasthesia, support his aggravation claim. However, Dr. Grossman did not specify how those symptoms and findings evidenced an actual worsening of claimant's accepted conditions. Rather, Dr. Grossman merely listed those findings and then concluded that claimant had suffered an aggravation. Dr. Grossman's opinion did not explain the role of claimant's acknowledged preexisting degenerative disease nor explicate or weigh the causative roles of the degenerative condition and claimant's accepted conditions.
In contrast, Dr. Vessely supported his conclusion that any disability or need for medical treatment was due to the degenerative process. Specifically noting that the MRI showed no nerve root compression, Dr. Vessely explained that such...
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