SAIF Corp. v. Durant (In re Comp. of Durant)

• Decision Date: 13 May 2015
• Docket Number: 1105489, 1105488, 1103416,A154773.
• Citation: 271 Or.App. 216,350 P.3d 489
• Parties: In the Matter of the Compensation of Jerry F. Durant, Claimant. SAIF Corporation; and MPP Piping, Inc., Petitioners, v. Jerry F. DURANT; McKinstry Company, LLC; SAIF Corporation; and Harder Mechanical–Intel OCIP, Respondents.
• Court: Oregon Court of Appeals

271 Or.App. 216

350 P.3d 489

In the Matter of the Compensation of Jerry F. Durant, Claimant.SAIF Corporation; and MPP Piping, Inc., Petitioners

v.Jerry F. DURANT; McKinstry Company, LLC; SAIF Corporation; and Harder Mechanical–Intel OCIP, Respondents.

1105489, 1105488, 1103416

A154773.

Court of Appeals of Oregon.

Argued and Submitted Jan. 9, 2015.

Decided May 13, 2015.

David L. Runner, Salem, argued the cause and filed the briefs for petitioners.

Jerald P. Keene, Portland, argued the cause for respondent Harder Mechanical–Intel OCIP. With him on the brief was Oregon Workers' Compensation Institute, LLC.

Thaddeus J. Hettle filed the brief for respondent McKinstry Company, LLC–SAIF Corporation.

No appearance for respondent Jerry F. Durant.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

Opinion

FLYNN, J.

Petitioners SAIF Corporation and its insured, MPP Piping, Inc. (MPP),¹ seek review of an order of the Workers' Compensation Board that found MPP responsible for claimant's 2011 shoulder condition as a consequential condition of claimant's 2006 shoulder injury at MPP. MPP contends that the board erred by refusing to apply the last injurious exposure rule (LIER) to shift responsibility for the admittedly work-related shoulder condition to a later employer. MPP also contends that the board erred in concluding that claimant's compensable injury was the major contributing cause of his 2011 shoulder condition. We conclude that substantial evidence supports the board's finding that claimant's 2006 injury was the major contributing cause of his full rotator cuff tear and that, based on that finding, the board properly classified the claim as a consequential condition for which MPP is liable. Accordingly, we affirm.

We state the facts consistently with the board's unchallenged factual findings. Sparling v. Providence Health System Oregon, 258 Or.App. 275, 276, 308 P.3d 1103 (2013). Claimant, who worked for MPP as a pipefitter, suffered a workplace injury in November 2006, which SAIF accepted as a “right shoulder strain.” In March 2007, Dr. Sedgewick performed surgery on claimant's right shoulder, during which he diagnosed “impingement and partial tear of the rotator cuff ” and performed “arthroscopic subacromial decompression.” He described the partial rotator cuff tear as it existed at the time of surgery as a “25% tearing.” After the surgery, claimant worked as a pipefitter for two subsequent employers—McKinstry Company and Harder Mechanical.² The pipe-fitting work was physically demanding.

Claimant began to experience increasing discomfort in his right shoulder. In April 2011, he returned to Sedgewick, and an MRI revealed a full thickness tear of the rotator cuff. Claimant filed a new or omitted condition claim with MPP for his right rotator cuff tear with impingement, and SAIF denied responsibility for the claim. Claimant then filed an occupational disease claim for the condition with employers McKinstry Company, also insured by SAIF, and Harder Mechanical, insured by Sedgwick.³ Those employers also denied the claims, on the basis of responsibility only. Claimant requested a hearing on all three denials.

Following a hearing, the administrative law judge (ALJ) found that the November 2006 injury at MPP was the cause of claimant's partial thickness rotator cuff tear and impingement and that the partial tear, in turn, was the “direct and major contributing cause” of the full thickness rotator cuff tear and impingement. The ALJ also rejected MPP's attempt to shift responsibility to one of the later employers under the LIER, reasoning that the rule does not apply when “actual causation” has been established.

The board affirmed the ALJ's determinations that the 2006 injury was the major contributing cause of claimant's 2011 right shoulder condition and, thus, that the full thickness rotator cuff tear and impingement is a consequential condition of the compensable 2006 injury. See ORS 656.005(7)(a)(A).⁴ The board also concluded that the claim was “most appropriately characterized as a consequential condition claim” and that the LIER, therefore, does not apply.

We first consider MPP's challenge to the Board's finding that claimant's 2006 injury at MPP was the major contributing cause of claimant's full thickness rotator cuff tear and impingement. We review the board's challenged factual findings for substantial evidence and substantial reason. ORS 656.298(7) ; ORS 183.482(8) ; SAIF v. Martinez, 219 Or.App. 182, 184, 182 P.3d 873 (2008) (stating standard of review).

In finding that the 2006 injury was the major contributing cause of claimant's condition, the board relied on the opinion of Sedgewick as well as the opinions of Dr. Puziss, an orthopedic surgeon who examined claimant and reviewed his records, and Dr. Keizer, who examined claimant on behalf of the insurers. Sedgewick opined that the November 2006 injury was the major cause of the “partial tear and impingement,” and that the partial tear progressed to the full thickness tear, which was also caused in major part by the 2006 work injury. Keizer also opined that “the major contributing cause of the full thickness tear and need for treatment” was the November 2006 injury, explaining that the partial tear “failed to heal” and “the full thickness tear developed as a direct consequence of the partial tear resulting from the 2006 injury.” Similarly, Puziss opined that the 2006 injury was the major contributing cause of the full thickness tear and impingement, because the partial tear “never healed.”⁵ The board determined that, based on the “persuasive opinions” of those three medical experts, there was sufficient evidence in the record to establish that the partial thickness tear was compensably related to the 2006 injury and was the major contributing cause of the full thickness rotator cuff tear and impingement. That finding is supported by substantial evidence.

MPP, nevertheless, urges us to declare the three medical opinions “legally insufficient” because “the expression ‘major contributing cause’ has a very specific meaning under the workers' compensation law” and, “[a]bsent some confirmation that the doctor understood the legally correct meaning of the expression, then the doctor's opinion is inherently ambiguous and legally insufficient for a lay fact-finder to find major contributing cause.” We have repeatedly held, however, that there are no “magic words” required for an expert to express a “major contributing cause” opinion. See, e.g.,

Freightliner Corp. v. Arnold, 142 Or.App. 98, 104–05, 919 P.2d 1192 (1996) (citing McClendon v. Nabisco Brands, Inc., 77 Or.App. 412, 417, 713 P.2d 647 (1986) ). Rather, we allow the board to “draw reasonable inferences from the medical evidence[.]” Benz v. SAIF, 170 Or.App. 22, 26, 11 P.3d 698 (2000) ; see also O'Connor v. Liberty Northwest Ins. Corp., 232 Or.App. 419, 425, 222 P.3d 1097 (2009) (stating that we accept the board's interpretation of medical evidence if “ ‘the record, viewed as a whole, would permit a reasonable person to make that finding’ ” (quoting ORS 183.482(8)(c) )).

Thus, while “determining the ‘major contributing cause’ involves evaluating the relative contribution of different causes of an injury or disease,” we have made it clear that the board may infer from context that an expert engaged in this weighing process. Dietz v. Ramuda, 130 Or.App. 397, 401, 882 P.2d 618 (1994), rev. dismissed, 321 Or. 416, 898 P.2d 768 (1995) ; see also Allied Waste Industries, Inc. v. Crawford, 203 Or.App. 512, 520, 125 P.3d 794 (2005), rev. den, 341 Or. 80, 136 P.3d 1123 (2006) ( Crawford ). In Crawford, the ALJ and board credited an expert opinion that did not “explicitly assess or weigh the relative contribution of all of the potential causes[.]” 203 Or.App. at 522, 125 P.3d 794 (emphasis added). We affirmed, concluding that the board could reasonably infer from the context of the expert opinion that the expert “did weigh the relative contributions of the work incident and the other contributing causes.” Id.

Here, each medical opinion on which the board relied explicitly states that the doctor took into account the contribution of subsequent work to the worsening of claimant's rotator cuff tear and concluded that the original partial tear, which never healed, was the major contributing cause.⁶ There is nothing unreasonable about the board's inference that the doctors in fact weighed the relative contribution of the later work exposure against the contribution of the partial tear from the 2006 injury.

MPP's primary argument is that, even if claimant's full thickness rotator cuff tear was caused in major part by the 2006 injury at MPP, the board should have applied the LIER and assigned responsibility to a later employer. The LIER is a judicially created rule that is “both a rule of proof and a rule of assignment of responsibility.” SAIF v. Hoffman, 193 Or.App. 750, 753, 91 P.3d 812 (2004) (citing Willamette Industries, Inc. v. Titus, 151 Or.App. 76, 80, 950 P.2d 318 (1997) ). As a rule of proof, the LIER allows a claimant to prove that a disease is compensable because it is caused by work exposure generally, “without having to prove the degree, if any, to which exposure to disease-causing conditions at a particular employment actually caused the disease.” Roseburg Forest Products v. Long, 325 Or. 305, 309, 937 P.2d 517 (1997). “As a rule of assignment of responsibility, the last injurious exposure rule assigns full responsibility to the last employer that could have caused the claimant's injury.” Id.

Our cases have emphasized that, when a claimant brings a consequential condition claim, and the board finds a claimant's condition compensable as a consequential condition of a previously accepted injury, then liability is to be assigned to that employer under ORS 656.005(7)(a)(A), rather than according to one of the judicially created rules for assigning responsibility among multiple employers. See SAIF v. Webb, 181 Or.App....