MATTER OF SKIRVING, 58 Van Natta 323 (Or. Work. Comp. 1/31/2006), WCB Case No. 05-03221.
| Decision Date | 31 January 2006 |
| Docket Number | WCB Case No. 05-03221. |
| Citation | 58 Van Natta 323 |
| Parties | In the Matter of the Compensation of JASON J. SKIRVING, Claimant. |
| Court | Oregon Workers' Compensation Division |
The insurer requests review of Administrative Law Judge (ALJ) Otto's order that set aside its denial of claimant's current combined low back condition. On review, the issue is compensability.
We adopt and affirm the ALJ's order with the following supplementation.
Finding the medical opinion of an attending physician, Dr. Treible, most persuasive, the ALJ determined that the insurer failed to prove that claimant's compensable injury ceased to be the major contributing of his current combined low back condition. On review, the insurer contends that Dr. Treible's opinion supporting compensability of claimant's current combined low back condition was unpersuasive. That contention, even if meritorious, does not cause us to disturb the ALJ's order.
Claimant has the initial burden of proving, by a preponderance of the evidence, that he suffered an "otherwise compensable injury." In other words, he must prove that his September 2, 2004 injury was at least a material contributing cause of his disability or need for treatment. ORS 656.005(7)(a); ORS 656.266(1). If claimant meets that burden and the medical evidence establishes that the "otherwise compensable injury" combined at any time with a "preexisting condition" to cause or prolong disability or a need for treatment, the insurer has the burden to prove that the "otherwise compensable injury" is not the major contributing cause of claimant's disability or need for treatment of the combined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a); Jack G. Scoggins, 56 Van Natta 2534, 2535 (2004).
Here, there is no dispute that claimant established an otherwise compensable injury or that there is a "combined condition." Thus, the issue is whether the insurer has met its burden of proving that claimant's "otherwise compensable injury" is not the major contributing cause of his disability or need for treatment of the combined condition.
The insurer challenges the persuasiveness of claimant's treating physician, Dr. Treible, who concluded that the compensable September 2004 injury remains the major contributing cause of claimant's need for treatment. However, while Dr. Treible's opinion may unpersuasively support a conclusion that claimant's compensable injury was the major contributing cause of his need for treatment, his opinion (regardless of its persuasiveness) is not probative on the issue of whether the work injury was not the major contributing cause of the need for treatment for the combined condition, which the insurer has the burden to prove. See ORS 656.266(2)(a); Steven M. Passmore, 57 Van Natta 2901, 2902 (2005); Jeremy A. Lane, 57 Van Natta 1769, 1771 (2005).
Thus, we look to the medical evidence supporting the insurer's position that the otherwise compensable injury was not the major contributing cause of the disability and need for...
To continue reading
Request your trial