Schuler v. BEAVERTON SCHOOL DIST. NO. 48J

• Decision Date: 15 December 1999
• Docket Number: WCB No. 97-01397; CA A101276
• Citation: 164 Or. App. 320,992 P.2d 467
• Parties: In the Matter of the Compensation of Melissa R. Schuler, Claimant. Melissa R. SCHULER, Petitioner, v. BEAVERTON SCHOOL DISTRICT No. 48J, Respondent.
• Court: Oregon Court of Appeals

992 P.2d 467

164 Or. App. 320

In the Matter of the Compensation of Melissa R. Schuler, Claimant.

Melissa R. SCHULER, Petitioner, v. BEAVERTON SCHOOL DISTRICT No. 48J, Respondent.

(WCB No. 97-01397; CA A101276)

Court of Appeals of Oregon.

Argued and Submitted November 30, 1998.

Decided December 15, 1999.

Charles Robinowitz, Portland, argued the cause and filed the brief for petitioner.

David L. Johnstone, Portland, argued the cause for respondent. With him on the brief was VavRosky, MacColl, Olson, Busch & Pfeifer, P. C. Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and WARDEN, Senior Judge.

DEITS, C.J.

Claimant seeks review of a decision by the Workers' Compensation Board that upheld employer's denial of her claim. The Board determined that claimant did not prove that her work injury was the major contributing cause of the need for treatment of her combined condition. We affirm.

We take the following undisputed facts from the record. Claimant is a substitute instructional aide employed by the Beaverton School District. In February 1995, she injured her back and neck in a noncompensable motor vehicle accident. At that time, x-rays revealed degenerative disc disease at C6-7. On June 8, 1995, claimant was injured when she slipped and fell at work. She sought treatment with Dr. Soot in August 1995. At that time, an MRI revealed a disc protrusion at C6-7. In November 1995, employer accepted the claim for low back, cervical, groin and right-wrist strains.

In March 1996, employer issued a partial denial of claimant's degenerative disc disease at C6-7. Claimant did not appeal this denial and her claim was closed in April 1996. She was awarded temporary partial disability but no permanent partial disability. In June 1996, claimant again sought treatment with Soot because of increased difficulty with pain in her neck and left shoulder and arm. At that time, claimant told Soot that she had not engaged in any unusual activity nor were these symptoms precipitated by any injury. In July 1996, claimant reported to Soot that she had felt a pop in her neck while putting in eye drops and that she was pain free for several days afterward. However, later, after moving bark dust, she again experienced significant pain.

While at work on September 26, 1996, claimant physically restrained a student who was misbehaving. She experienced neck and shoulder pain at home that evening. On September 30, claimant again saw Soot. She reported that her left shoulder and arm had become progressively worse since the week before. Soot noted that this worsening occurred after some activity at work, but that "there was no really acute increase following any one particular episode. The pains now have been very difficult to cope with." Soot referred claimant to a neurosurgeon, Dr. Waller, whom claimant saw on October 1. An MRI, conducted on that day, revealed degenerative disc changes at C6-7 with progression of left-sided disc protrusion/herniation with compromise of the left foramen and possible slight displacement of the left side of the spinal cord. Waller diagnosed persistent C7 radiculopathy with increased symptoms due to left C6-7 disc herniation. He performed left cervical C6-7 diskectomy and foraminotomy surgery on October 3. The surgery was successful, and claimant was released to return to work on October 25, 1996.

On November 8, 1996, claimant filed an 801 form, claiming benefits for her alleged September 26 injury. Employer denied the claim on the basis that claimant's work was not the major cause of the worsening of her preexisting degenerative disc disease and herniation at C6-7.

Claimant sought review of the employer's denial. After a hearing the ALJ set aside employer's denial holding that, although the preexisting condition was the major portion of the condition being treated, the work injury was the immediate cause of the need for treatment and, therefore, the treatment was compensable. The Board reversed the ALJ, noting that the case relied on by the ALJ, SAIF v. Nehl, 148 Or.App. 101, 939 P.2d 96, modified on recons. 149 Or.App. 309, 942 P.2d 859 (1997), rev. den. 326 Or. 389, 952 P.2d 62 (1998), had since been modified by this court to clarify that, under ORS 656.005(7)(a)(B), a claimant must establish that the work injury was not only the precipitating cause but the major contributing cause of the claimant's disability or need for treatment. The Board explained, relying on Dietz v. Ramuda, 130 Or.App. 397, 401, 882 P.2d 618 (1994), rev. dismissed 321 Or. 416, 898 P.2d 768 (1995), that the determination of a major contributing cause includes evaluating the relative contributions of different causes of the claimant's need for treatment of the combined condition and then deciding which is the primary cause. Claimant seeks review of the Board's decision upholding employer's denial. She makes two assignments of error. She agrees that the Board articulated the correct legal standard; namely, that claimant must establish the major contributing cause of the need for treatment of the combined condition. She contends, however, that it is apparent from the Board's discussion of the issue and from its reliance on Dietz that the Board actually applied the incorrect legal standard for determining the compensability of the disability. She asserts that, by relying on Dietz, the Board evaluated the major cause of claimant's combined condition rather than the major cause of claimant's need for treatment of the combined condition.

The major cause of the combined condition is discussed in the Board's order. As noted above, however, the Board does ultimately determine the major contributing cause of the need for treatment for claimant's combined condition. The Board's reliance on Dietz is not inconsistent with that conclusion. The Board relied on Dietz for the proposition that the determination of the major contributing cause requires evaluation of the relative contribution of different causes, both work-related and preexisting. That is equally true whether what is being evaluated is the major contributing cause of the need for treatment of the combined condition or the compensability of the combined condition itself. Nehl, 149 Or.App. at 312, 942 P.2d 859. See Worldmark The Club v. Travis, 161 Or.App. 644, 649, 984 P.2d 898 (1999). We conclude that the Board applied the correct legal standard.

Claimant's second assignment of error is that there is not substantial evidence in the record to support the Board's finding that Waller, claimant's treating neurosurgeon, failed to weigh the relative contribution of claimant's preexisting conditions against her work injury to determine the major contributing cause of claimant's need for treatment of the combined condition. The Board explained its conclusion:

"After reviewing the medical evidence, we are not persuaded that claimant has established that the work injury was the major contributing cause of the disability or need for treatment of the combined condition. In this regard, although Dr. Waller believed that the injury provoked symptoms and precipitated the need for claimant's surgery, we are not persuaded that Dr. Waller weighed the contribution from the work injury against the contribution from the preexisting disc herniation to determine which was the major contributing cause of claimant's need for treatment of the combined condition. See Dietz v. Ramuda, 130 Or.App. [at] 401-402, 882 P.2d 618. Under such circumstances, we find that claimant has not established compensability of the combined condition."

Substantial evidence supports a finding when the record, viewed as a whole, permits a reasonable person to make the finding. Garcia v. Boise Cascade Corp., 309 Or. 292, 295, 787 P.2d 884 (1990); ORS 183.482(8)(c). This court must evaluate the substantiality of supporting evidence by considering all of the evidence in the record. Younger v. City of Portland, 305 Or. 346, 356, 752 P.2d 262 (1988). Viewing the record as a whole, the question presented here is whether the Board's finding, that Waller did not weigh the relative contributions of claimant's preexisting condition and her work injury to the need for treatment, is supported by substantial evidence. That finding is critical, of course, because it led to the Board's conclusion that claimant did not prove that her work injury was the major contributing cause of her need for treatment of the combined condition.

At the outset, we would note that, because the question of what is the major contributing cause of claimant's need for treatment involves a complex medical opinion, the Board must rely on expert medical evidence in making that determination. Uris v. Compensation Department, 247 Or. 420, 424-26, 427 P.2d 753, 430 P.2d 861 (1967). The Board cannot supply its own diagnosis. SAIF v. Strubel, 161 Or.App. 516, 521, 984 P.2d 903 (1999).

Here, there was evidence from three doctors. The testimony of Soot, and Dr. Zivin, a neurologist, who reviewed claimant's medical records but did not examine her, was inconclusive with respect to the question of what was the major contributing cause of claimant's need for treatment. Soot, who, as noted above, had previously treated claimant and referred her to Waller, stated that the disc protrusion could have worsened over time, or it could have been caused by claimant's work activities. He said that he could not determine the major contributing cause of the worsening. Zivin suggested that claimant's disc condition preexisted her work exposure and could have occurred in the absence of employment exposure. He did not offer an opinion on the major contributing cause of her need for treatment.

The only medical evidence that directly addressed the question of what was the major contributing cause of claimant's need for treatment of her combined condition was Waller's statements. In a letter dated November 14, 1996, from claimant's counsel, Waller was asked:

"I have a few basic

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