Miller v. SAIF Corp. (In re Miller), A160311

• Decision Date: 25 July 2018
• Docket Number: A160311
• Citation: 425 P.3d 766,293 Or.App. 74
• Parties: In the Matter of the Compensation of Jeffery L. Miller, Claimant. Jeffery L. MILLER, Petitioner, v. SAIF CORPORATION and Bennett Management, LLC, Respondents.
• Court: Oregon Court of Appeals

293 Or.App. 74

425 P.3d 766

In the Matter of the Compensation of Jeffery L. Miller, Claimant.Jeffery L. MILLER, Petitioner,

v.SAIF CORPORATION and Bennett Management, LLC, Respondents.

A160311

Court of Appeals of Oregon.

Argued and submitted November 2, 2016.

July 25, 2018

Christopher D. Moore, Eugene, argued the cause and filed the briefs for petitioner.

David L. Runner, Salem, argued the cause and filed the brief for respondents.

Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge.^*

GARRETT, J.

Claimant seeks review of an order of the Workers’ Compensation Board concluding that his shoulder condition is compensable as an occupational disease and not also as an accidental injury. For the reasons that follow, we conclude that substantial evidence supports the board’s finding that claimant’s shoulder condition developed gradually and, therefore, that the board did not err by analyzing compensability using only an occupational-disease analysis. Accordingly, we affirm.

We review the board’s order for substantial evidence and legal error, ORS 656.298(7) ; ORS 183.482(8), and for substantial reason, SAIF v. Martinez , 219 Or. App. 182, 184, 182 P.3d 873 (2008). "We state the facts consistently with the board’s unchallenged factual findings." SAIF v. Durant , 271 Or. App. 216, 218, 350 P.3d 489 (2015), rev. den. , 358 Or. 69, 363 P.3d 500 (2015).

Claimant is a maintenance worker in apartment buildings, and his employer is insured by respondent SAIF. His previous jobs included employment as an apprentice and journeyman sheet-metal worker, during which he spent three to four years performing overhead work between 70 and 80 percent of the time.

One day, while locking an apartment door, claimant developed pain and "heard and felt a pop in [his] right shoulder." He sought treatment the same day and reported that he had experienced some soreness in his shoulder for the previous two weeks, but that he did not otherwise have any right shoulder issues. A physician interpreted an MRI of claimant’s shoulder to show "full thickness tears" in two of claimant’s right rotator cuff tendons, among other physiological abnormalities in his shoulder. He soon began physical therapy targeted at his right shoulder, and his orthopedist recommended rotator cuff repair

surgery.

Claimant filed two claims for workers’ compensation benefits for his right shoulder. He first filed an accidental-injury claim for a "right shoulder injury," which SAIF denied. Six months later, claimant filed an occupational-disease claim for a "right rotator cuff tear

and right subscapularis tear," which SAIF also denied. Following the second denial, claimant requested a hearing. The claims were consolidated for a hearing before an administrative law judge (ALJ).

Before the ALJ, SAIF argued that claimant had a preexisting arthritic shoulder condition that combined with the work incident and that the work incident was not a "major contributing cause of the need for treatment of the combined condition." See ORS 656.005(7)(a)(B) (providing that, if an "otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition" or "the need for treatment of the combined condition"). SAIF relied on the opinion of Dr. Toal, who opined that claimant’s treatment had primarily been for "preexisting rotator cuff disease," and that an arthritic bone spur had caused "gradual wear and tear of th[e] [supraspinatus] tendon eventually leading to the tear." SAIF further argued that claimant did not have persuasive evidence that his lifelong work activities were the major contributing cause of his right shoulder "conditions."

Claimant relied on the testimony of Dr. Puziss. Puziss opined that the door-lock incident had caused claimant to sustain acute tears that were superimposed on preexisting partial tears caused by occupationally related overuse of the right shoulder over "many years." Puziss noted that it was not possible to determine with certainty the extent to which claimant’s rotator cuff was torn prior to the door-lock incident, including whether there was any full thickness tearing

before that time. Puziss opined that rotator-cuff degeneration and partial tearing were consistent with claimant’s past work activities, including the overhead work that claimant performed as a sheet-metal worker. Puziss further opined that claimant’s activities as a maintenance worker were capable of contributing to the progression of the tears and that the door-lock incident was also capable of worsening the partial tears, resulting in the full-thickness tearing. Puziss further stated that the bone spur was "not large enough to cause gradual wear and tear of the supraspinatus tendon."

The ALJ found Puziss’s opinion to be the most persuasive because Puziss "had an accurate history regarding the mechanism of injury," and because "he based his opinion on the objective medical evidence" and an "accurate understanding of the nature, type and duration of claimant’s work activities over his lifetime." The ALJ rejected SAIF’s argument that the degenerative pathology of claimant’s rotator cuff tendons and muscles qualified as a preexisting condition and found that claimant’s arthritis

was not a contributor to claimant’s disability or need for treatment. The ALJ set aside SAIF’s denial of both claimant’s injury claim and his occupational-disease claim, concluding that the harm caused by the door-lock incident qualified as an injury and the underlying degeneration qualified as an occupational disease.

SAIF appealed the ALJ’s order to the board. To determine whether the ALJ erred in finding both claims compensable, the board reviewed the medical evidence and the record to determine which standard or standards to apply, stating as follows:

"Despite a claimant’s chosen theory of compensability, it is our obligation as fact finder to review the medical evidence and the record to determine the appropriate legal standard to evaluate the compensability of a claim."

(Citing, inter alia , DiBrito v. SAIF , 319 Or. 244, 248, 875 P.2d 459 (1994) ).

Like the ALJ, the board found Puziss’s opinion to be the most persuasive—that "claimant’s rotator cuff tears

* * * were caused by his work activities over time, in combination with the June 2013 injury incident." The board observed that an "occupational disease" is defined to include "[a]ny series of traumatic events or occurrences which requires medical services or results in physical disability or death," ORS 656.802(1)(a)(c), and that, "[w]ork injuries may be considered among ‘employment conditions’ when evaluating the major contributing cause of an occupational disease." (Citing, inter alia , Hunter v. SAIF Corp. , 246 Or. App. 755, 760, 268 P.3d 660 (2011) ). The board reasoned that Puziss’s opinion as to the cause of claimant’s condition was "consistent with ‘a series of traumatic events or occurrences’ " such that "an occupational disease analysis is applicable." The board then reasoned that Puziss’s opinion as to the cause of claimant’s condition "is the one that advances the compensability of claimant’s claimed condition," and, therefore, the board decided to "analyze the disputed claim under an ‘occupational disease’ standard." (Emphasis added.)

The board went on to conclude that claimant’s condition was a compensable occupational disease because the evidence established that his employment activities were the major contributing cause of his shoulder condition. Consequently, the board affirmed the portion of the ALJ’s order finding claimant’s occupational-disease claim compensable and reversed the portion finding claimant’s injury claim compensable. The board also decreased claimant’s attorney and claim processing fees to accurately reflect the costs and services relating to a single claim.

On review, claimant argues that the board erred in denying his injury claim because the medical evidence established that he both sustained a compensable accidental injury and suffered from a compensable occupational disease. Claimant contends that he is entitled to acceptance of both claims, arguing that the evidence establishes the existence of an occupational disease consisting of the degeneration to his shoulder and an injury consisting of tears to his already-degenerated rotator cuff tendons. SAIF responds that substantial evidence supports the board’s finding that claimant’s condition developed gradually due to a series of traumatic occurrences, the last of which was the door-lock incident and, therefore, the board correctly applied an occupational-disease analysis to find claimant’s right shoulder condition compensable solely as an occupational disease.

Claimant characterizes the board’s order as "subject[ing]" claimant’s condition to "an either/or analysis * * * when he had both a compensable injury and [a] compensable occupational disease." In other words, claimant interprets the board’s order to conclude that his shoulder condition could never be compensable as both an injury and an occupational disease. We disagree with that characterization. As we understand the board’s opinion, the board concluded that the accidental-injury standard for compensability was not applicable because the medical evidence did not show that claimant’s need for medical treatment was caused by an accidental injury, as that term is used...