Vigor Indus., LLC v. Ayres (In re Comp. of Ayres)

• Decision Date: 07 August 2013
• Docket Number: A149855.,0901523
• Parties: In the Matter of the Compensation of Randi P. Ayres, Claimant. VIGOR INDUSTRIAL, LLC, Petitioner, v. Randi P. AYRES, Respondent.
• Court: Oregon Court of Appeals

257 Or.App. 795
310 P.3d 674

In the Matter of the Compensation of Randi P. Ayres, Claimant.
VIGOR INDUSTRIAL, LLC, Petitioner,
v.
Randi P. AYRES, Respondent.

0901523; A149855.

Court of Appeals of Oregon.

Argued and Submitted Sept. 18, 2012.
Decided Aug. 7, 2013.

[310 P.3d 675]

Jerald P. Keene argued the cause for petitioner. With him on the briefs was Oregon Workers' Compensation Institute, LLC.

Kevin Keaney argued the cause and filed the brief for respondent.

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

HADLOCK, J.

[257 Or.App. 796]The dispute in this workers' compensation case centers on the statutes governing claims for “combined conditions” that arise when “an otherwise compensable injury combines * * * with a preexisting condition to cause or prolong disability or a need for treatment * * *.” ORS 656.005(7)(a)(B). Such a “combined condition” is compensable “only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause” of the disability or the need for treatment of the combined condition. Id. In this case, the Workers' Compensation Board issued an order that set aside employer's denial of claimant's claim for combined conditions, ruling that employer had not met its burden of proving that claimant's otherwise compensable injury no longer was the major contributing cause of his disability and need for treatment. On employer's petition for judicial review, we affirm.

The issue we address on review is a legal one, and we briefly describe the facts solely to provide context for our discussion. Claimant slipped at work and injured his right foot in early 2008. Employer accepted a claim for a nondisabling foot strain later that year. In January 2009, after receiving new medical evaluations, claimant submitted a claim for two new foot conditions: a navicular fracture and avascular necrosis (AVN) of the navicular bone in his right foot, both of which predated his work injury. Employer denied

[310 P.3d 676]

those conditions in a document titled “combined condition denial,” and claimant requested, and was granted, a hearing before an administrative law judge (ALJ).

After that hearing, the ALJ issued an opinion and order addressing what he described as employer's “denial of [claimant's] additional medical condition claims for a right foot navicular fracture and [AVN] in the navicular bone.” The ALJ found that claimant's “disability and need for treatment for the AVN and the fracture was caused at least in material part by his injury.” Consequently, the ALJ ruled, claimant had established that he had an “otherwise compensable injury,” that is, that his work-related injury “was at least a material cause of the disability and need for treatment for the AVN and fracture.” See [257 Or.App. 797]Hopkins v. SAIF, 349 Or. 348, 351, 245 P.3d 90 (2010) (“To establish a ‘compensable injury,’ the worker must prove that a work-related injury is a material contributing cause of a disability or need for treatment.”).

However, because the ALJ also found that claimant had preexisting arthritis, he considered the possible applicability of ORS 656.005(7)(a)(B), which specifies when “combined conditions” are compensable:

“If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the need for treatment of the combined condition.”

It is undisputed that claimant's arthritis is a “preexisting condition” for purposes of ORS 656.005(7)(a)(B). It also is undisputed that claimant's AVN and navicular fracture had not been diagnosed or treated prior to claimant's work injury. Consequently, neither of those conditions is a “preexisting condition” for purposes of that statute, even though they predated claimant's injury. SeeORS 656.005(24)(a) (defining “preexisting condition”).¹

The ALJ found, based on medical evidence in the record, that claimant's preexisting degenerative arthritis contributed to some degree to his disability and need for treatment. Therefore, the ALJ determined, claimant had a combined condition that consisted of “the preexisting arthritis and the injury.” ² The ALJ then analyzed whether employer had met its burden of proving, under ORS 656.266(2)(a), [257 Or.App. 798]that claimant's “otherwise compensable injury” was no longer the major contributing cause of his disability and need for treatment of the combined condition.³ Finding no persuasive evidence that claimant's preexisting arthritis made a significant contribution to his disability and need for treatment—as compared to the contribution from the injury itself—the ALJ concluded that employer had not proved that the otherwise compensable injury no longer was the major contributing cause of claimant's disability and need for treatment. Accordingly, the ALJ set aside employer's denial of the claim.

[310 P.3d 677]

Employer sought review before the Workers' Compensation Board, presenting a two-part argument. First, employer argued that claimant's AVN and navicular fracturealso contributed to his combined condition, which did not comprise only arthritis and the work injury. Second, employer argued that the pertinent comparison, for purposes of the “major contributing cause” analysis, was between the work injury and all other contributors to claimant's disability and need for treatment, not just those contributors that qualified as “preexisting conditions.” Thus, employer argued, the board should determine whether claimant's work injury remained the major contributing cause of his disability and need for treatment when compared to the contributions from both claimant's arthritisand his AVN and navicular fracture.

The board adopted the ALJ's factual findings but departed, somewhat, from his legal analysis. Like the ALJ, the board started from the premise that a combined condition has only two components: the “otherwise compensable injury” and a statutorily defined “preexisting condition.” Unlike the ALJ, however, the board determined that the “otherwise compensable injury” in this case was not the work injury itself; [257 Or.App. 799]instead, the board stated, the AVN and navicular fracture each constituted an otherwise compensable injury. The board concluded that those otherwise compensable injuries combined with claimant's preexisting arthritis to form two combined conditions: (1) arthritis plus the AVN and (2) arthritis plus the navicular fracture. Applying the combined-condition analysis, the board concluded that employer had not met its burden of proving that the “otherwise compensable injuries”—as the board viewed it, the AVN and navicular fracture—no longer were the major contributing cause of those combined conditions:

“With respect to the combined right foot navicular fracture and degenerative arthritis condition, the employer does not identify, nor have we located, medical evidence that would establish that the otherwise compensable navicular fracture is not the major contributing cause of claimant's disability/need for treatment for the combined fracture/arthritis condition. Likewise, we are unable to locate expert medical evidence establishing that the otherwise compensable [AVN] is not the major contributing cause of the combined necrosis/arthritis condition.”

On review before this court, employer acknowledges that the board correctly analyzed the claim as involving a combined condition, given the preexisting arthritic degeneration in claimant's injured foot. Employer also acknowledges that it had the burden of proving that claimant's otherwise compensable work injury no longer was the major contributing cause of his disability and need for treatment. Nonetheless, employer argues, the board erred by failing to consider all of the conditions that contributed to claimant's foot problem when it conducted the “major contributing cause” analysis, including those aspects of the AVN and navicular fracture that predated claimant's work injury (and, therefore, could not be considered part of the “otherwise compensable injury”). According to employer, the board should have compared the contribution of claimant's “otherwise compensable injury” to the contributions from claimant's arthritis, his AVN, and his navicular fracture to determine whether—absent those latter three contributions—the otherwise compensable injury remained the major contributing cause of the disability and [257 Or.App. 800]need for treatment.⁴ In response, claimant urges us to adopt the board's reasoning.

The parties' competing positions can be reduced to mathematical equations. Claimant contends—and the board ruled—that a “combined condition” consists only of the “otherwise compensable injury” (OCI) and a statutory “preexisting condition” (PEC) that combines with it:

Combined condition = OCI + PEC

[310 P.3d 678]

Moreover, according to both claimant and the board, that equation governs the “major contributing cause” analysis. In other words, to determine whether “the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition[,]” ORS 656.005(7)(a)(B), one need compare only the contributions of the otherwise compensable injury and the preexisting condition to see which is greater ⁵:

OCI > PEC

or

OCI < PEC

Employer disagrees. In its view, the combined condition also includes any other conditions that somehow contribute to the worker's identified medical problem, even though they do not qualify as preexisting conditions under ORS 656.005(24)(a):

Combined condition = OCI + PEC + other conditions

Accordingly, employer argues, those other conditions also figure into the “major contributing cause” analysis:

[257 Or.App. 801]OCI > (PEC + other...