Sprague v. United States Bakery

• Decision Date: 11 May 2005
• Citation: 112 P.3d 362,199 Or. App. 435
• Parties: In the Matter of the Compensation of Edward G. Sprague, Claimant. Edward G. SPRAGUE, Petitioner, v. UNITED STATES BAKERY, SAIF Corporation and Jerry's Specialized Sales, Respondents.
• Court: Oregon Court of Appeals

112 P.3d 362

199 Or. App. 435

In the Matter of the Compensation of Edward G. Sprague, Claimant.

Edward G. SPRAGUE, Petitioner, v. UNITED STATES BAKERY, SAIF Corporation and Jerry's Specialized Sales, Respondents.

01-01561, 00-07404; A121957.

Court of Appeals of Oregon.

Argued and Submitted October 7, 2004.

Decided May 11, 2005.

Christopher D. Moore, Eugene, argued the cause and filed the briefs for petitioner.

E. Jay Perry argued the cause for respondent United States Bakery. With him on the brief was Employers Defense Counsel.

David L. Runner, Salem, argued the cause and filed the brief for respondents SAIF Corporation and Jerry's Specialized Sales, Inc.

Before EDMONDS, Presiding Judge, and SCHUMAN, Judge, and LEESON, Judge pro tempore.

EDMONDS, P.J.

Claimant seeks reversal of a Workers' Compensation Board (board) order upholding SAIF's denial on behalf of employer of claimant's medical services claim for gastric bypass surgery that was performed in January 2001.¹ ORS 656.245. Claimant argued to the board that the gastric bypass surgery was needed to reduce his obesity in order to make knee replacement surgery successful. We review for substantial evidence and errors of law, ORS 656.298(7) and ORS 183.482, and remand.

The following facts are taken from the administrative law judge's (ALJ's) order, which the board adopted with supplementation:

"Claimant compensably injured his left knee while working as a mechanic for Jerry's Specialized Sales in March of 1976. He weighed 225 pounds at the time of the injury. SAIF accepted claimant's claim and he underwent an arthroscopy to repair a torn lateral meniscus in December of 1976. The claim was ultimately closed with an award of 15 percent scheduled disability on August 29, 1977. In the interim, he began working as a baker for United States Bakery.

"Claimant began gaining weight after his 1976 injury. By January of 1996, he weighed 320 pounds and his physicians were considering a surgical approach to bring his weight under control. In 1998, his left knee became symptomatic once again and his increasing weight was seen as an aggravating factor in that regard.

"On February 5, 1999, claimant suffered a second left knee injury, this time while working as a baker. United States Bakery accepted claimant's claim for `disabling cartilaginous fragments of the left knee' on November 5, 1999. On January 13, 2000, it modified its acceptance to include a combined condition, which included preexisting left knee problems. The next day, [Gates McDonald] issued a denial of the combined condition."

The board also found:

"Claimant is genetically predisposed to obesity. He has been overweight since he was a child, with fluctuations of 40 to 100 pounds since 1976. Claimant weighed about 225 pounds when he first injured his left knee in 1976. He weighed about 350 pounds when Dr. Flanagan performed gastric bypass surgery on January 3, 2001. Claimant needed gastric bypass surgery to treat his obesity, various co-morbid conditions, and his left knee condition.

"Dr. Walton recommends total left knee replacement surgery. Claimant's obesity contributed to his need for knee surgery, as do residuals from his 1976 injury and surgery, including arthritis. Claimant would need to lose a significant amount of weight (100 to 150 pounds) in order for that surgery to be successful."

(Record citations omitted.) In addition, on December 20, 2000, SAIF issued a modified acceptance, noting that, in addition to its previous acceptance of claimant's "knee" claim, it was also accepting "arthritis of the lateral compartment, left knee." However, SAIF took the position that claimant's claim for medical services for the gastric bypass surgery was not compensable.

Claimant assigns error to the board's failure to find his requested medical services for a gastric bypass compensable pursuant to ORS 656.245.² Claimant's specific argument is that the board "erred by passing over the first part of the statute and going to the second part dealing with combined or consequential conditions." Under the first sentence of ORS 656.245(1)(a) an employer is responsible for medical services for conditions caused in material part by an accepted injury. SAIF argues that the board appropriately applied the second sentence of the statute because it had found that claimant's current accepted left knee condition was a consequential condition of his accepted condition. If claimant's current condition is a consequential condition, then employer is responsible under ORS 656.245(1) only for medical services caused in major part by claimant's accepted condition.

In arriving at its conclusions upholding SAIF's denial, the board found that claimant needed gastric surgery

"partly because he needs knee replacement surgery and he must lose weight for the knee surgery to be successful. However, the gastric surgery was also performed for the obesity. And Dr. Flanagan [claimant's treating physician] never explained why he believes that the knee condition contributed more to the need for gastric surgery than did the preexisting genetically determined obesity."

(Emphasis in original.) The board reached the following conclusions:

"Although claimant has no accepted gastric condition, the bypass surgery was performed in part to treat his left knee condition (which is due largely to the 1976 work injury). Insofar as the surgery was performed to treat claimant's obesity and his left knee, we find that the claim is best characterized as a claim for medical services for a consequential condition. Therefore, under ORS 656.245(1)(a), claimant must prove that his compensable knee injury was the major contributing cause of his need for gastric surgery. That means that he must establish that his work injury (or injuries) contributed more to his need for gastric surgery than all other causes combined."

(Footnotes and record citations omitted; emphasis added.)

We disagree with the board's characterization of claimant's claim for...