Saif Corp. v. Walker (In re Comp. of Walker)

• Decision Date: 26 December 2013
• Docket Number: 0902172,A150552.,0904014,0902171,0902170
• Citation: 317 P.3d 384,260 Or.App. 327
• Parties: In the Matter of the Compensation of David D. Walker, Claimant. SAIF CORPORATION and Quantum Resource Recovery, Petitioners, v. David D. WALKER, Respondent.
• Court: Oregon Court of Appeals

260 Or.App. 327

317 P.3d 384

In the Matter of the Compensation of David D. Walker, Claimant.SAIF CORPORATION and Quantum Resource Recovery, Petitioners,

v.David D. WALKER, Respondent.

0904014; 0902172; 0902171; 0902170; A150552.

Court of Appeals of Oregon.

Argued and Submitted Feb. 7, 2013.

Decided Dec. 26, 2013.

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

Jodie Phillips Polich, Milwaukie, argued the cause for respondent. With her on the brief was Law Offices of Jodie Anne Phillips Polich, P.C.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and HADLOCK, Judge.

SERCOMBE, J.

In this workers' compensation case, SAIF Corporation (SAIF) and employer Quantum Resource Recovery (Quantum) seek judicial review of an order of the Workers' Compensation Board (board), which determined that the worsening of claimant's preexisting L4–5 disc herniation was a “consequential condition” under ORS 656.005(7)(a)(A) because a compensable injury to claimant's left foot was “the major contributing cause” of that condition.¹SeeORS 656.005(7)(a)(A) (“No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.”). On review, SAIF initially argues that, because the disc herniation preceded the foot injury by at least two years, it is not “legally or logically possible” that the disc herniation was a consequence of the foot injury that followed it. SAIF further contends, alternatively, that there is not substantial medical evidence to support a finding of an actual worsening of claimant's L4–5 herniation as a consequence of the foot injury, but only evidence of a “symptomatic aggravation” of that condition. We review the board's order for substantial evidence and errors of law, ORS 656.298(7); ORS 183.482(8), and for the reasons below, we conclude that substantial evidence supports the board's determination that the worsening of claimant's L4–5 disc herniation was a consequential condition of the 2008 foot injury. Accordingly, we affirm.

In 2004, before beginning work with Quantum, claimant fell out of a truck and struck his lower back while working in Arizona. He reported lower back pain and occasional tingling in his right thigh. In May 2006, claimant underwent an MRI scan of the lumbar spine. The MRI revealed a 4–to–5–mm L4–5 disc protrusion, which had a slight mass effect on the right L5 nerve root.

In October 2006, while working for Quantum, claimant heard a “pop” and experienced lower back pain as he was pushing heavy barrels. Thereafter, claimant had pain and tenderness in his right lower back and some numbness and tingling down his left leg, and he underwent a second lumbar MRI scan in November 2006. That scan showed that the L4–5 disc protrusion had “increased noticeably because of extruded disc material,” as compared to the earlier MRI, and that there was mass effect on both the L5 and the S1 nerve root sleeves.

SAIF accepted the October 2006 injury as a lumbar strain. Claimant received treatment for that injury over the next year and by October 2007 was determined to be medically stationary. In November 2007, the claim for lumbar strain was closed with no award of permanent impairment. In February 2008, claimant wrote to SAIF, asking it to add a “worsening * * * of L4 and L5 disc protrusion” to his claim. SAIF denied that request, relying on an April 2008 opinion from Dr. Bergquist that the October 2006 injury was not a material cause of the disability or need for treatment of claimant's disc herniation. Claimant did not pursue review of that denial, and it became final by operation of law.

In August 2008, while working at Quantum, a pallet jack fell onto claimant's left foot. SAIF accepted a left foot crush injury. A few months later, during treatment with Dr. Thomas, claimant reported severe back pain, a limited range of motion in his lower back, and right leg pain with radiculopathy.² In early November 2008, claimant underwent a third MRI. The reviewing radiologist reported that the disc material at the L4–5 level was still protruding into the spinal canal, but there was no “significant interval change in its size or contours” as compared to the second 2006 MRI.

Dr. Wayson saw claimant in December 2008. Wayson noted that claimant had an injury in October 2006 with back pain and right leg pain. Wayson further noted that, following claimant's August 2008 left foot injury, he was compensating for his left foot, which “led to an aggravation of his right leg symptoms and he has become progressively uncomfortable.” Wayson's assessment was of “lumbar radiculopathy secondary to a disc herniation.” After seeing Wayson, claimant sent a letter to SAIF requesting acceptance of “[l]umbar disc herniation, L4–5” and “[l]umbar radiculitis secondary to # 1” as new or omitted medical conditions. The letter further stated that claimant's “file indicates that according to some of the medical evidence [he] may have a preexisting condition in his lower back. If appropriate please process this request as a worsening of the above referenced conditions.”

In January 2009, Dr. Carr performed an independent medical evaluation. Carr noted that, before claimant's October 2006 back injury, he had degenerative disc disease at L4–5. In Carr's view, following the October 2006 back injury, claimant suffered a “definite pathological worsening of the disc protrusion” and “radicular symptoms which would be called radiculitis which in [his] opinion were secondary to the worsening of the disc herniation at L4–5.” Carr believed that the 2006 injury “was the major contributing cause of the disability and need for treatment following the combined condition” but the October 2006 back injury “ceased to be the major contributing cause of disability and need for treatment at the time [claimant] was declared medically stationary.”

As to the 2008 foot injury, Carr believed that it combined with the preexisting disc condition to cause the resulting need for treatment of the lower back. In Carr's view, the altered gait due to the foot injury “alter[ed] the stresses on the back” and “produce[d] symptomatic aggravation of the degenerative disc disease.” Carr believed that the 2008 foot injury “and its sequela was a material contributing cause of [claimant's] disability and need for treatment for his low back following the work incident[,]” but he did not believe that the foot injury was the major contributing cause of the disability and need for treatment resulting from the combined condition. (Emphasis added.) Rather, Carr believed that the preexisting disc condition—not the 2008 foot injury—was the major contributing cause of the disability and the need for treatment.

In February 2009, Wayson wrote to claimant's counsel that, “[f]or the most part [he] agree[d] with Dr. Carr's assessment * * *.” Specifically, Wayson

“believe[d] that [claimant's] primary injury is the work injury of October of 2006 in which he suffered a progression of his disc herniation at L4–5. I think that that is the underlying and the primary cause for his need for treatment.

“He has remained symptomatic since that [time] and the foot injury [of] 2008 has led to an exacerbation, but the primary underlying cause is the disc herniation of 2006.

“Therefore, I disagree with Dr. Carr's conclusion on page 16 that ‘it is not the continuing and major contributing cause to his current disability.’ I do believe that the underlying disc herniation is and continues to be symptomatic.”

Later in February 2009, SAIF denied the conditions for “L4–5 disc herniation” and “L4–5 radiculitis.” SAIF amended that denial in June 2009, stating that, with respect to the October 2006 injury, the April 2008 denial of the disc herniation was final and claimant's L4–5 radiculitis was “a product of the previously denied L4–5 disc herniation.”

In August 2009, Wayson signed a concurrence letter prepared by claimant's counsel after a conference between them. That letter explained that Wayson had the opportunity to review a “formal exhibit pack,” including the MRIs from 2006, and that he agreed that “the major contributing cause, more than 50.1%, of [claimant's] current low back condition, diagnosed as an L4–5 disc herniation with radiculopathy/radiculitis, is his August 21, 2008 injury where he sustained a crush injury to his left foot.” Wayson further agreed that,

“as a result of the crush injury to his left foot [claimant] altered his gait by increasing use and weight bearing on his right leg. As a result of his altered gait due to the crush injury to his left foot his low back condition has been worsened irritating the nerves in his low back causing inflammation and increased symptoms. Your opinion is based on the history provided to you by [claimant] of increased pain after this injury, as well as your examination, including his decreased sensation in an L5–S1 distribution on the right side, giveaway weakness in his right lower extremity, and positive straight leg raise testing. In your opinion these are all verifiable and reproducible * * * findings of an actual worsening of [claimant's] L4–5 disc herniation. It is your opinion that the major contributing cause, more than 50.1% of this worsening is [claimant's] altered gait due to the crush injury to his left foot.”

(Emphases added.) Carr responded to Wayson's opinion during a deposition in October 2009. He testified that he did not agree with Wayson that there was a pathological worsening. Carr noted that the decreased sensation and positive straight leg raising were both observed prior to the 2008 injury and that the 2008 MRI showed that the disc fragment was no larger than it was when the MRI was taken after the 2006 injury. Thomas, who had treated claimant just after his injury, signed a concurrence letter prepared by SAIF's counsel in which he agreed with Carr's conclusions regarding claimant's disc...