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

• Decision Date: 12 October 2016
• Docket Number: A155778
• Parties: In the Matter of the Compensation of David M. Williams, Claimant. SAIF Corporation and Baker County School District #61, Petitioners, v. David M. Williams, Respondent.
• Court: Oregon Court of Appeals

281 Or.App. 542

381 P.3d 955

In the Matter of the Compensation of David M. Williams, Claimant.SAIF Corporation and Baker County School District #61, Petitioners,

v.David M. Williams, Respondent.

A155778

Court of Appeals of Oregon.

Argued and submitted June 12, 2015.

October 12, 2016

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

Ronald A. Fontana, Portland, argued the cause and filed the brief for respondent.

Before DeVore, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.

GARRETT, J.

Petitioners, SAIF Corporation and Baker County School District #61, seek reversal of an order of the Workers' Compensation Board that concluded that claimant had established the compensability of a “new medical or omitted medical condition” under ORS 656.267 for a thoracic spine Tarlov cyst.¹ On review, petitioners contend that the board's analysis is predicated on two factual errors regarding the medical evidence. Claimant concedes one of the errors but argues that any error was harmless. We conclude that the board's opinion does contain two factual assertions that are not supported by the record. We further conclude that those errors could have affected the board's analysis of the claim and are, therefore, not harmless. Accordingly, we vacate the board's order and remand for reconsideration.

We review the board's legal conclusions for legal error and its determinations on factual issues for substantial evidence. Luton v. Willamette Valley Rehabilitation Center , 272 Or.App. 487, 490, 356 P.3d 150 (2015). “Substantial evidence exists when the record, viewed as a whole, permits a reasonable person to find as the board did, in the light of supporting and contrary evidence.”

State Farm Ins. Co. v. Lyda , 150 Or.App. 554, 559, 946 P.2d 685 (1997), rev. den. , 327 Or. 82, 961 P.2d 216 (1998).

Claimant was compensably injured on March 10, 2006, when he fell through some rotting boards while walking on a ramp. He struck the ground, later describing the pain as “like being kicked in the back by a horse.” Three days later, he was evaluated at a trauma center and received a diagnosis of a possible T5–6 facet joint fracture. On March 23, 2006, claimant was examined by Dr. Ha, who diagnosed a thoracic strain. SAIF accepted a claim for thoracic strain. In July 2006, Ha found the thoracic strain medically stationary without permanent impairment, although claimant continued to experience severe thoracic symptoms. A July 27, 2006, notice of closure did not award compensation for permanent impairment.

Over the next several years, claimant continued to experience thoracic pain and spasms. He sought treatment from at least 16 physicians over a four-and-a-half-year period. Different MRI scans revealed, among other things, mild posterior T7–8 and T8–9 disc protrusions and multiple Tarlov cysts throughout the thoracic spine neural foramina. The largest Tarlov cyst was at T5–6. Claimant also underwent multiple neurological evaluations of his thoracic spine. Several different physicians who treated claimant during that period opined that the Tarlov cyst at the T5 level was likely an “incidental finding” and not causing symptoms.

Based in part on his own internet research, claimant formed the opinion that the Tarlov cysts were the cause of his symptoms. Claimant became aware of Dr. Feigenbaum, a Kansas City physician specializing in the surgical treatment of Tarlov cysts. In late 2009, claimant contacted Feigenbaum and sent him his medical records. Feigenbaum agreed to accept claimant as a patient and a candidate for surgery, provided that claimant first obtain an evaluation confirming the existence of symptoms that Feigenbaum “wanted to see” in the T5 dermatome. In May 2010, claimant was treated at Oregon Health & Science University (OHSU), where claimant reported symptoms in the T5 dermatome (specifically, mid-back pain with “intermittent radiation around chest into xyphoid just below nipples”). OHSU physicians recommended “trigger points injections” into the rhomboid muscles, which claimant received on August 9, 2010. As a result of those injections, claimant experienced seven-and-a-half hours of relief, which, according to claimant, was a “major breakthrough.”

Claimant communicated with Feigenbaum in October 2010, reporting that he had documentation of symptoms in the T5 dermatome and that the injections he had received had temporarily relieved his symptoms. According to the board's opinion and order, “Dr. Feigenbaum examined claimant in October 2010, opining that the T5 Tarlov cyst was responsible, at least in part, for his thoracic symptoms, and recommend[ed] surgery.” It is undisputed on appeal that that statement by the board was erroneous; Feigenbaum did no such examination in October 2010, and apparently never performed a neurological examination to confirm the presence of symptoms in the T5 dermatome. Rather, Feigenbaum's agreement to perform surgery on claimant was apparently based on Feigenbaum's review of claimant's imaging studies and telephone conversations with claimant, who reported symptoms in the T5 dermatome and that the injections had provided some relief.

In November 2010, Feigenbaum operated on claimant and performed a left T5 laminectomy and treatment of a left T5 meningeal (Tarlov) cyst. After the surgery, claimant's symptoms almost completely resolved. Feigenbaum opined that the March 2006 work injury caused the T5 Tarlov cyst to become symptomatic and require treatment. Claimant filed a claim for the T5 Tarlov cyst condition.

At SAIF's request, claimant was examined by Dr. Rosenbaum and his medical records were reviewed by Dr. Sabahi; both doctors opined that the Tarlov cyst was not caused by the 2006 work injury and not likely the cause of claimant's symptoms. Their opinions both noted that claimant had experienced a recurrence of similar symptoms after the surgery, following an incident in which claimant stepped in a hole while walking across a field. SAIF denied the T5 Tarlov cyst claim. An administrative law judge (ALJ) set aside SAIF's denial, finding the claim compensable based in part on a determination that Feigenbaum's opinion was more persuasive than those of Rosenbaum and Sabahi. SAIF appealed to the board, which affirmed the ALJ's order setting aside SAIF's denial, with one member dissenting.

In its order, the board explained that it viewed Feigenbaum's opinion as more persuasive than those of Rosenbaum or Sabahi. The board placed heavy reliance on the fact that Feigenbaum had actually operated on claimant, noting that “a physician who performs surgery on an injured body part may be in a better position to evaluate the injury or disease than other medical experts.” In addition, the board refuted the argument that claimant's symptoms might have had a different cause by pointing out that claimant's symptoms “did not abate until his November 2010 Tarlov cyst surgery.” Specifically with regard to the reasons for discounting Rosenbaum's opinion, the board observed:

“Moreover, Dr. Rosenbaum reasoned that if claimant's T5 cyst was symptomatic, he would have expected to find ‘pain located at that level and radiating to the anterior chest.’ Yet, claimant has exhibited such symptoms on numerous occasions since his March 2006 injury. For example, Dr. Ha, who first treated claimant less than two weeks after the March 2006 injury, noted severe pain in his thoracic region, and off to the left between his interscapular region, with accompanying muscle spasms. Dr. Ha continued to document thoracic muscle pain and spasms, reporting in August 200[6]² ‘objective findings demonstrate pain in the thoracic region that radiates both proximally and distally.’ ”

(Citations omitted.)

The dissenting board member concluded that Feigenbaum's causation opinion was inadequate to support the compensability of claimant's T5 Tarlov cyst claim. The dissent noted that Feigenbaum's statement that it is “common for Tarlov cysts to become symptomatic after a traumatic event” was “general in nature, and does not explain how the mechanics of claimant's particular injury caused, or contributed to, his disability/need for treatment of the Tarlov cyst. As such, it is conclusory, and therefore, unpersuasive.” The dissent also took issue with the board majority's view of the evidence regarding claimant's symptoms:

“Dr. Feigenbaum assumed a close temporal relationship between claimant's work injury and the onset of symptoms radiating into his chest that signified the T5 nerve root involvement. Yet, claimant did not report any symptoms radiating into his chest until May 2010, four years after his injury.

“The ALJ relied on an August 2006 report by Dr. Ha, stating that claimant had pain in the thoracic region that ‘radiated both proximally and distally,’ as evidence of symptoms radiating into claimant's chest. Dr. Ha stated on the same occasion, however, that claimant was neurologically intact. Dr. Ha previously made the same findings in May 2006. Furthermore, other physicians explicitly assessed claimant's 2006 and 2007 symptoms as not radiating around his chest. In contrast, a neurologist's 2010 note specifically described symptoms ‘radiating around the chest * * * just below the nipples.’ Without further detail, it is not proper to infer from Dr. Ha's reports that claimant developed symptoms consistent with the T5 nerve root compression as early as May or August 2006.”

(Emphasis in original; citations omitted.)

On appeal, in a single assignment of error, petitioners argue that the board made two factual errors and “exceeded its limited statutory role as a lay fact-finder.” The two factual errors identified by petitioners are (1) the board's statement that Feigenbaum personally examined claimant a month before the surgery and opined on the basis thereof that claimant was experiencing symptoms caused by the T5 Tarlov cyst and (2) the board's finding that Ha had made findings of symptoms in the T5 dermatome as early as March 2006,...