SAIF Corporation v. January

Decision Date19 April 2000
Citation166 Or. App. 620,998 P.2d 1286
PartiesIn the Matter of the Compensation of Edward M. January, Claimant. SAIF CORPORATION and St. Helen's Roofing And Construction, Petitioners, v. Edward M. JANUARY, Respondent.
CourtOregon Court of Appeals

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

James O. Marsh, Portland, argued the cause for respondent. With him on the brief was Carney, Buckley, Kasameyer & Hays.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Employer seeks judicial review of a Workers' Compensation Board (Board) order allowing claimant's aggravation claim. See ORS 656.273(1). The issue is whether claimant carried his burden to establish an "actual worsening" of his condition. As framed on review, that issue encompasses the legal question of whether claimant presented the type of evidence required to satisfy the "actual worsening" requirement, as well as the factual question of whether the Board's finding of an "actual worsening" in this case is supported by substantial evidence. We conclude that the evidence on which the Board relied satisfies the legal standard for an aggravation. We also conclude, however, that we cannot meaningfully determine whether the Board's order is supported by substantial evidence because the Board failed to sufficiently explain its reliance on the particular medical opinion that it found persuasive. We reverse and remand for reconsideration.

Claimant, a roofer, was injured in 1994 when he fell while working on a roof. SAIF accepted a claim for multiple injuries, including a lumbar strain. That claim was closed in July 1995, with scheduled permanent partial disability awards for some of claimant's injuries but without an award of permanent disability for the lumbar strain. In May 1996, claimant experienced increased back pain while he was pulling nails with a hammer at work. Claimant subsequently filed a claim for aggravation of the original lumbar strain. Employer referred the matter to SAIF, which denied the claim on the ground that no "actual worsening" had occurred.

Claimant requested a hearing before an administrative law judge (ALJ) and, at the hearing, presented evidence of his treating physician's opinion that his "increased symptoms" represented a temporary worsening of his condition. The ALJ upheld SAIF's denial, and claimant sought Board review. The Board reversed the ALJ's order, determining that claimant's evidence satisfied the "actual worsening" requirement. As a predicate to its finding of an actual worsening, the Board first observed:

"It stands to reason that what constitutes a `pathological worsening' depends on the nature of the compensable condition. For example, what constitutes a pathological worsening of a strain is not the same as what constitutes a pathological worsening of a herniated disc. * * * At issue in this aggravation claim is whether or not the accepted lumbar strain condition has compensably worsened."

(Underscoring in original.) Reviewing the evidence, the Board observed that the medical experts disagreed as to whether claimant's compensable lumbar strain condition had worsened. One of the independent medical examiners who examined claimant for the insurer concluded that claimant had suffered only a symptomatic flare-up of his lower back pain. In contrast, claimant's treating physician, Dr. Kelly, stated affirmatively that the increased symptoms represented a temporary worsening of the lumbar strain. Specifically, claimant's attorney sent a "check the box" letter to Kelly posing the following question:

"In your opinion, in a situation such as this where the accepted condition is one of `lumbar strain,' do the increased symptoms which [claimant] experienced in the lumbar region following the 5/22/96 incident represent a worsening, although perhaps only a temporary worsening, of that chronic lumbar strain?"

Kelly responded by circling the words "temporary worsening" and by checking the box marked "yes." Relying on that opinion by Kelly, the Board found that claimant had suffered an aggravation of his compensable condition.

On review, SAIF first challenges the legal standard that the Board applied in this case. SAIF asserts that, to prevail, claimant had to demonstrate an actual worsening by showing a "change in the tissues." According to SAIF, the Board relaxed claimant's evidentiary burden due to the nature of the injury (a "strain") and permitted claimant to prevail on medical testimony that inferred a worsening based on an increase in symptoms only, without demonstrating a physiological change in the compensable condition. SAIF concedes that it may be more difficult to demonstrate a physiological change for a strain than for a herniated disc but argues that the legal standard nevertheless requires a medical expert to do so.

In SAIF v. Walker, 330 Or. 102, 996 P.2d 979 (2000), the Supreme Court examined the legal standard for an aggravation in light of the 1995 amendments to the statute. The court reviewed at length the meaning of the legislature's requirement in ORS 656.273(1) that a "worsened condition" be established by "medical evidence of an actual worsening of the compensable condition." The court held that:

"[E]vidence of worsened symptoms, while relevant, is not sufficient by itself to meet the proof standard created by ORS 656.273(1) (1995). However, * * * a physician may rely upon that kind of evidence in determining whether the compensable condition has worsened and in opining on that question to the factfinder or to the Board. In other words, the `medical evidence * * * supported by objective findings' that is required under ORS 656.273(1) (1995) and ORS 656.273(3) to prove an `actual worsening of the compensable condition' may include a physician's written report commenting that the worker's worsened symptoms demonstrate the existence of a worsened condition."
Id. at 118, 996 P.2d 979.

The Supreme Court's decision in Walker directly answers SAIF's contention in this case. Contrary to SAIF's position, a symptomatic worsening may meet the proof standard for an actual worsening if a medical expert concludes that the "symptoms demonstrate the existence of a worsened condition." Id. To be sure, evidence of a symptomatic worsening, in and of itself, does not permit a factfinder to infer an actual worsening. See id. at 119, 996 P.2d 979 (noting that the ALJ applied improper legal standard by inferring an actual worsening from evidence of symptomatic worsening). But if medical evidence—i.e., a physician's expert opinion—establishes that...

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19 cases
  • Columbia Forest Products v. Woolner
    • United States
    • Court of Appeals of Oregon
    • 31 Octubre 2001
    ...the "Board did not `provide a sufficient explanation to allow a reviewing court to examine the agency's action,'" SAIF v. January, 166 Or.App. 620, 626, 998 P.2d 1286 (2000), we must remand the issue of the scope of employer's acceptance to the Board for reconsideration. Blamires, 171 Or.Ap......
  • Naes Corp. v. Sci 3.2, Inc. (In re Comp. of Lodge)
    • United States
    • Court of Appeals of Oregon
    • 29 Abril 2020
    ...the testimony of each other, requiring the board to explain how it chose what testimony to accept. See, e.g. , SAIF v. January , 166 Or. App. 620, 626, 998 P.2d 1286 (2000) (board erred when it neither acknowledged nor reconciled inconsistencies between two opinions offered by the same medi......
  • Saif Corp. v. Walker (In re Comp. of Walker), 0904014
    • United States
    • Court of Appeals of Oregon
    • 26 Diciembre 2013
    ...may rely upon that kind of evidence in determining whether the compensable condition has worsened * * *.”); SAIF v. January, 166 Or.App. 620, 624, 998 P.2d 1286 (2000) (if a medical expert's opinion establishes that the symptomatic worsening represents an actual worsening of the underlying ......
  • Saif Corp. v. Harrison (In re Harrison), A164670
    • United States
    • Court of Appeals of Oregon
    • 21 Agosto 2019
    ..., 281 Or. App. at 548, 381 P.3d 955 (quoting SAIF v. Pepperling , 237 Or. App. 79, 85, 238 P.3d 1013 (2010) ). In SAIF v. January , 166 Or. App. 620, 998 P.2d 1286 (2000), we reviewed a board decision that involved two contradictory opinions of a single medical expert given at different tim......
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