Matter of the Compensation of Walker

• Decision Date: 16 March 2000
• Docket Number: WCB 93-07081.,CA A89100.,SC S44116.
• Citation: 330 Or. 102,996 P.2d 979
• Parties: In the Matter of the Compensation of Roland A. Walker, Claimant. SAIF CORPORATION, Insurer, and Gold Creek Center, Inc., Employer, Respondents on Review, v. Roland A. WALKER, Petitioner on Review.
• Court: Oregon Supreme Court

996 P.2d 979

330 Or. 102

In the Matter of the Compensation of Roland A. Walker, Claimant SAIF CORPORATION, Insurer, and Gold Creek Center, Inc., Employer, Respondents on Review, v. Roland A. WALKER, Petitioner on Review.

WCB 93-07081.

CA A89100.

SC S44116.

Supreme Court of Oregon.

Argued and Submitted January 7, 1998.

Decided March 16, 2000.

On review from the Court of Appeals.^*

Robert Wollheim, of Welch, Bruun, Green & Wollheim, Portland, argued the cause for petitioner on review. With him on the petition and brief on the merits was W. Todd Westmoreland, Tillamook.

David L. Runner, SAIF Corporation, Salem, argued the cause and filed the brief on the merits for respondents on review. On the response to the petition for review was Julene M. Quinn, SAIF Corporation, Salem.

James L. Edmunson and G. Duff Bloom, of Cole, Cary & Wing, P.C., Eugene, filed a brief on behalf of amici curiae Oregon Trial Lawyers Association and Oregon Workers' Compensation Attorneys.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, and DURHAM, Justices.^**

CARSON, C.J.

In this workers' compensation case, we must interpret the wording of ORS 656.273(1) (1995),¹ which sets out the requirements for establishing a worsened condition for the purpose of filing an aggravation claim. The Court of Appeals concluded that, under that statute, a worker must prove a "pathological" worsening of the underlying condition itself, rather than only a worsening of symptoms. SAIF v. Walker, 145 Or.App 294, 305, 930 P.2d 230 (1996). For the reasons that follow, we conclude that ORS 656.273(1) (1995) requires proof of a worsened condition; proof of a worsening of symptoms arising from the underlying condition, by itself, is insufficient. We also conclude, however, that evidence of a symptomatic worsening may support a physician's conclusion that the underlying compensable condition itself has worsened. We affirm the decision of the Court of Appeals and remand the case to the Workers' Compensation Board (the Board) for further proceedings.

The relevant facts, taken from the Court of Appeals' opinion and the record, are as follows. Claimant, a timber faller, injured his lower back and left leg on the job in 1991. Claimant was diagnosed by Dr. Buza, his treating physician, as having an "L5-S1 herniated disc." Claimant filed a claim for compensation. His injury was deemed compensable, and SAIF Corporation (SAIF), his employer's insurer, paid the claim.

In May 1992, Buza declared claimant medically stationary and released him to regular work, beginning in June 1992, without restriction. At that time, claimant's work required heavy lifting of up to 100 pounds. Buza's closing report concluded that claimant's loss of function was minimal, although claimant continued to have some pain in his lower back and left leg. SAIF awarded claimant 12 percent permanent partial disability (PPD) and closed the claim.

Claimant requested reconsideration of the closure. In February 1993, he was examined by a medical arbiter, Dr. Burr. Burr concluded that claimant had a chronic and permanent medical condition arising from his accepted injury, and that he was capable of "medium work occasionally, light to medium work constantly, without repeated crouching, or bending." Based upon that report, SAIF increased claimant's PPD award to 16 percent.

Also in February 1993, claimant experienced increased pain while working and returned to Buza for treatment. At Buza's suggestion, claimant underwent an MRI scan, which revealed evidence of scar tissue but no residual or recurrent disc herniation. Buza referred claimant to a rehabilitation center to evaluate his physical capabilities. That evaluation concluded that claimant had "residual physical capacities in the light-medium work range, lifting and carrying 35 pounds occasionally with increased symptoms."

In May 1993, Burr re-examined claimant and concluded that, in addition to the herniated disc, claimant suffered from degenerative disc disease with continued symptomatic low back and left leg discomfort. Later, in response to a letter from claimant's lawyer, Buza concurred with Burr's diagnosis.

Claimant filed an aggravation claim under ORS 656.273 (1993). SAIF denied the claim in April 1993, concluding that claimant's underlying condition had not worsened since his earlier award. Claimant requested a hearing, which was held in March 1994. The administrative law judge (ALJ)² noted that, to prevail on his aggravation claim under ORS 656.273(1) (1993), "claimant must show that increased symptoms or worsening of the underlying condition resulted in diminished earning capacity." (Emphasis added.) The ALJ concluded that, because the evidence demonstrated that claimant's increased symptoms reflected more than a mere waxing and waning of the symptoms anticipated at the time of the PPD award, claimant had proved his aggravation claim. On June 1, 1995, the Board affirmed the ALJ's order.

Meanwhile, the 1995 Legislature enacted extensive amendments to the Workers' Compensation Law, including an amendment to ORS 656.273(1) that became effective on June 7, 1995. Or Laws 1995, ch 332, §§ 31, 69. That amendment applied retroactively to claimant's case. Or Laws 1995, ch 332, § 66. On June 29, 1995, SAIF petitioned for judicial review of the Board's order, arguing that claimant had not proved his aggravation claim under the 1995 version of ORS 656.273(1).

A majority of the Court of Appeals concluded that, under ORS 656.273(1) (1995):

"[T]here [must] be direct medical evidence that a condition has worsened. It is no longer permissible for the Board to infer from evidence of increased symptoms that those symptoms constitute a worsened condition for purposes of proving an aggravation claim. Here, both the hearings officer and the Board considered the claim under the old standard. The Board specifically held that an actual worsening of the condition may be proven by a symptomatic worsening, and it based its conclusion that claimant had proven an aggravation claim on evidence of claimant's increased symptoms. We hold that proof of a pathological worsening is required. * * *"

Walker, 145 Or.App. at 305, 930 P.2d 230. Accordingly, the Court of Appeals reversed the Board's order and remanded the case to the Board for reconsideration. Id. Two judges dissented, asserting that an aggravation claim may be proved by evidence of increased symptoms "greater than those that were contemplated in the prior award." Id. at 310, 930 P.2d 230 (Armstrong, J., dissenting). We allowed claimant's petition for review.

At the time when claimant filed his aggravation claim, ORS 656.273(1) (1993) provided, in part:

"After the last award or arrangement of compensation, an injured worker is entitled to additional compensation, including medical services, for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence supported by objective findings. * * *"

(Emphasis added.) The 1995 Legislature amended that statute by deleting the words "including medical services" and by adding the wording set out below in boldface type:

"After the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings. * * *"

Or Laws 1995, ch 332, § 31 (boldface type in original; deleted text omitted; emphasis added). As noted, the amended wording applies retroactively to claimant's claim.

SAIF contends that, to prove "an actual worsening of the compensable condition" under the amended version of ORS 656.273(1), an injured worker must prove a worsening of the underlying condition itself, rather than a worsening of the symptoms arising from that condition. Claimant, on the other hand, contends that a worker may present evidence of either an actual worsening of the compensable condition itself, which the Court of Appeals characterized as a "pathological worsening," or of a "symptomatic worsening"—a worsening of the symptoms arising from the compensable condition—that is greater than the symptomatic worsening anticipated at the time of the original award.

As explained more fully below, two questions are before us, both of which present issues of statutory construction. First, we must determine whether ORS 656.273(1) (1995) requires proof of a worsening of the underlying condition itself, or whether proof of a certain degree of symptomatic worsening would satisfy that statute. Second, and in a related vein, we must determine the role—if any—that worsened symptoms play in the course of proving an aggravation claim.

Our task in resolving those issues is to determine the legislature's intent when it amended ORS 656.273(1) in 1995. In doing so, we follow the template set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). We first examine the text and context of the statute. Id. at 610-11, 859 P.2d 1143. Context includes other related statutes and earlier versions of the statute at issue. Id. at 611, 859 P.2d 1143; Owens v. Maass, 323 Or. 430, 435, 918 P.2d 808 (1996). At our first level of analysis, we also consider case law interpreting the statute at issue and related statutes, including earlier versions of those statutes. State v. Toevs, 327 Or. 525, 532, 964 P.2d 1007 (1998); Owens, 323 Or. at 435, 918 P.2d 808. If the legislature's intent is clear from an examination of text and context, then our inquiry is at an end. PGE, 317 Or. at 611, 859 P.2d 1143.

We begin by examining the wording of the phrase added to ORS 656.273(1) in 1995—"actual worsening of the compensable condition." Although not defined specifically in the Workers' Compensation Law, the term "compensable condition," as...