Opinion
WCB Case No. 12-01539 WCB Case No. 11-05366 WCB Case No. 11-00472
09-17-2014
In the Matter of the Compensation of SAMUEL D. ALLEN, Claimant
M & L Legal Attorneys, Claimant Attorneys SAIF Legal, Defense Attorneys
ORDER ON REVIEW
M & L Legal Attorneys, Claimant Attorneys
SAIF Legal, Defense Attorneys
Reviewing Panel: Members Weddell and Johnson.
Claimant requests review of those portions of Administrative Law Judge (ALJ) Poland's order that: (1) upheld the SAIF Corporation's denial of his current combined low back condition; (2) determined that the compensability of an L4-5 disc "herniation" had not been properly raised; (3) upheld SAIF's denial of his new/omitted medical condition claim for an L4-5 disc "protrusion;" and (4) upheld SAIF's denials of his low back injury claims. On review, the issues are scope of issues (hearing) and compensability. We reverse in part and affirm in part.
FINDINGS OF FACT
We adopt the ALJ's "Findings of Fact."
CONCLUSIONS OF LAW AND OPINION
Low Back Injury Claims
We adopt and affirm the ALJ's reasoning and conclusions.
Current Combined Condition Denial
On August 20, 2010, claimant injured his low back after twisting while lifting/carrying a heavy load at work. Three days before the injury, he had treated with Dr. Keiper, a neurosurgeon, for a greater than two year history of low back pain; with left sided leg pain within the last three months. Dr. Keiper suspected a herniated disc and recommended an MRI, which occurred on August 24, 2010, and revealed an L4-5 disc protrusion with annular tear. (Ex. 6).
SAIF accepted a low back strain. Subsequently, in January 2011, SAIF accepted, without a request by claimant, a combined condition consisting of a low back strain and L4-5 and L5-S1 spondylosis. In the same document, SAIF denied the combined condition, asserting that as of December 15, 2010, the "accepted injury" was no longer the major contributing cause of the combined condition. (Ex. 60). Claimant requested a hearing.
In upholding the denial, the ALJ first rejected claimant's argument that SAIF's acceptance of a combined condition was improper. The ALJ concluded that SAIF's acceptance was consistent with the medical evidence, which established the presence of a statutory "preexisting condition" that had combined with the otherwise compensable injury. Finally, the ALJ found that the record established a change in the lumbar strain such that it was no longer the major contributing cause of the disability and need for treatment of the combined condition.
On review, claimant makes several arguments challenging the combined condition acceptance, as well as regarding the substantive merits of the denial. For the following reasons, we do not find those arguments persuasive.
Claimant initially contends that SAIF improperly accepted a combined condition in the absence of a request to do so. However, a carrier is entitled to modify its acceptance as medical or other information changes a previously issued acceptance notice. ORS 656.262(6)(b)(F).
Here, before it accepted a combined condition, SAIF had medical evidence from both Dr. Vessely, an examining physician, and Dr. Blake, the attending physician, that a combined condition was present. (Exs. 51-8, 59-1). Therefore, SAIF's combined condition acceptance, even in the absence of a claim, was not procedurally prohibited.
Claimant also asserts that the record lacks sufficient evidence of a "preexisting condition," specifically "arthritis or an arthritic" condition. We disagree.
For purposes of determining a "preexisting condition" under ORS 656.005(24)(a)(A), the Supreme Court has determined that the legislature intended the term "arthritis" to mean the "inflammation of one or more joints, due to infectious, metabolic, or constitutional causes, and resulting in breakdown, degeneration, or structural change." Schleiss v. SAIF, 354 Or 637, 652-53 (2013); Hopkins v. SAIF, 349 Or 348, 364 (2010); Daniel B. Slater, 66 Van Natta 335, 337 (2014).
The Supreme Court has explained that, to establish the existence of preexisting arthritis, a carrier must adduce expert testimony that the claimant suffers from "inflammation of whatever joint or joints it contends are affected by the arthritic condition." Schleiss, 354 Or at 653; Hopkins, 349 Or at 363; see Staffing Services, Inc. v. Kalaveras, 241 Or App 130, 137-38, rev den, 350 Or 423 (2011) ("despite the existence of medical opinions in the record that [the] claimant's condition is arthritis or arthritic, the board was required to determine in the first instance whether the record was sufficient to establish that [the] claimant suffers from that condition as legally defined"); Michael Kelson, 65 Van Natta 32 (2013) (interpreting Kalaveras to mean that there is no "arthritis" or "arthritic condition" without evidence of joint inflammation); Paul D. Beer, 63 Van Natta 975, recons, 63 Van Natta 1191 (2011) (same).
Here, Dr. Vessely, who examined claimant at SAIF's request, explained that the preexisting spondylosis was "arthritis" that involved inflammation of a joint at L4-5. He further explained the process by which the joint inflammation was due to infectious, metabolic, or constitutional causes, and resulted in breakdown, degeneration, or structural change. (Ex. 67-2). Thus, we conclude that the criteria in Schleiss and Hopkins was satisfied. Although claimant argues that Dr. Vessely's opinion was conclusory, his explanation was extensive. Accordingly, we conclude that Dr. Vessely's opinion establishes the presence of a "preexisting condition," as well as a "combined condition."
Finally, clamant asserts that the medical evidence does not establish a change in condition or circumstances such that the otherwise compensable injury ceased to the major contributing cause of the disability or need for treatment of the combined condition. Claimant asserts that Dr. Vessely "utterly failed" to explain the change in condition or circumstances. We disagree.
ORS 656.262(6)(c) authorizes a carrier to deny an accepted combined condition if the otherwise compensable injury ceases to be the major contributing cause of the combined condition. The employer bears the burden to show a change in circumstances or a change in condition such that claimant's otherwise compensable injury ceased to be the major contributing cause of the disability or need for treatment of the combined condition. ORS 656.266(2)(a); Wal-Mart Stores, Inc. v. Young, 219 Or App 41, 4190 (2008).
The "otherwise compensable injury" is not defined by the carrier's acceptance, but rather "the work injury resulting from the work accident that caused the disability or need for treatment." Brown v. SAIF, 262 Or App 640, 651 (2014). In determining major causation of the combined condition, only statutory preexisting conditions may be weighed against the otherwise compensable injury. Vigor Indus., LLC v. Ayres, 257 Or App 795, 806 (2013).
Here, Dr. Vessely provided an extensive explanation of why claimant's work injury had ceased to be the major cause of his need for treatment as of the December 15, 2010 examination. In addition, his explanation was directed to claimant's specific circumstances. (Ex. 67-4). Finally, both Dr. Blake and Dr. Tiley concurred with Dr. Vessely's report. (Exs. 68, 94-9).
With regard to whether medical evidence satisfied the Brown standard, Dr. Vessely did refer at times to the accepted "strain." (Ex. 67). However, he also referred to "work exposure," "acute event," and the "injury," as ceasing to be the major cause. Thus, in light of those latter references, we conclude that Dr. Vessely's opinion satisfied the requirements of Brown.
Dr. Tiley referred to the "work injury" as not being the major cause of the disability or need for treatment of the combined condition. (Ex. 94-9).
Dr. Thomas provided the medical evidence supporting claimant's position. However, he examined claimant in October 2012, more than two years after the August 2010 injury (by contrast, Dr. Vessely examined claimant in December 2010). Although noting the history of claimant's "pre-injury" treatment, Dr. Thomas did not discuss that history in his analysis of the compensability issues. Compared to Dr. Vessely's extensive opinion, Dr. Thomas's opinion is not as well explained and is therefore less persuasive. (Ex. 117). See Somers v. SAIF, 77 Or App 259 (1986).
In sum, we conclude that the record supports the ALJ's decision to uphold SAIF's current combined condition denial. Thus, we affirm this portion of the ALJ's order.
New/Omitted Medical Condition
In July 2011, claimant requested acceptance of an L4-5 disc "protrusion" with annular tear and an L5-S1 lateral disc "protrusion." SAIF denied the claim, prompting claimant to request a hearing.
In upholding SAIF's denial, the ALJ first addressed the L4-5 disc condition. The ALJ determined that because Dr. Thomas had addressed an L4-5 disc "herniation," that opinion could not be considered because the compensability of a disc "herniation," as opposed to a disc "protrusion," was not at issue. The ALJ further rejected claimant's argument that SAIF did not object to addressing the compensability of a disc herniation, noting that when she brought the issue to the attention of the parties after the hearing, SAIF did not agree that a disc herniation was encompassed within its denial, and that it opposed addressing the compensability of a disc herniation in post-hearing supplemental argument. Having "excluded" Dr. Thomas's opinion, the ALJ upheld the denial of the L4-5 disc condition.
With regard to the L5-S1 disc condition, the ALJ determined that claimant did not satisfy his burden of proving medical causation. Claimant does not contest that portion of the ALJ's order. Moreover, claimant's appellant's brief indicates that the claim for the L5-S1 disc protrusion was withdrawn.
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On review, claimant makes several arguments in asserting that the ALJ should have addressed the compensability of a disc "herniation" and not "excluded" Dr. Thomas's opinion. He argues that the parties agreed to litigate a general disc condition, that the physicians used the terms "protrusion" and "herniation" interchangeably, and that the applicable statutes do not require specificity in a new/omitted medical condition claim. SAIF responds that it did not agree to litigate a disc herniation and that the doctors recognized the difference between a protrusion and a herniation.
We disagree with the ALJ's conclusion that the compensability of an L4-5 disc herniation was not at issue. Having reviewed the record, we find that the physicians used the terms disc "protrusion" and disc "herniation" interchangeably. However, we do not consider the opinion of Dr. Thomas, on whose opinion claimant relies, to be persuasive. Thus, we find that the L4-5 disc condition is not compensable. We reason as follows.
Dr. Thomas opined that the specific lifting injury was the major cause of the L4-5 herniated disc. (Ex. 117-4). As previously noted, however, claimant consulted Dr. Keiper, a neurosurgeon, three days before the compensable injury, reporting a long history of low back pain, and left leg pain over the previous three months. Dr. Keiper suspected a herniated disc. (Ex. 1).
We acknowledge that Dr. Thomas reviewed Dr. Keiper's chart note. He noted that claimant was able to work and reported Dr. Keiper's examination findings. (Ex. 117-1). When addressing causation, however, Dr. Thomas did not further mention the back and leg symptoms that preexisted the injury and caused a need for treatment from a neurosurgeon just days before the compensable injury. (Ex. 117-3, -4).
By contrast, claimant's treatment shortly before the compensable injury figured prominently in Dr. Vessely's opinion that claimant's L4-5 disc condition was related to preexisting lumbar spondylosis. (Ex. 51, -7, -8, -9). Furthermore, the attending physician, Dr. Blake, opined that the L4-5 disc protrusion and annular tear were not caused by the August 2010 work injury. (Ex. 101-13). Dr. Blake considered claimant's presentation three days before the injury with a two year history of back pain and a three month history of left leg pain as "most crucial." (Ex. 101-10). Finally, Dr. Tiley also attributed claimant's L4-5 disc condition to the preexisting degenerative low back condition. (Ex. 94-9).
Having reviewed this record, we conclude that the preponderance of the persuasive medical opinions does not support a conclusion that claimant's work injury was a material contributing cause of the disability or need for treatment of his claimed L4-5 disc condition. Moreover, even if claimant established an otherwise compensable injury, the persuasive medical opinions establish that the otherwise compensable injury was not the major contributing cause of the disability or need for treatment of a combined L4-5 disc condition. See ORS 656.266(2)(a). Thus, we affirm that portion of the ALJ's order that upheld the denial of claimant's new/omitted medical condition claim.
ORDER
The ALJ's order dated August 28, 2013 is reversed in part and affirmed in part. That portion of the ALJ's order that determined that the compensability of an L4-5 disc herniation was not raised is reversed. SAIF's denial of the aforementioned condition is also upheld. The remainder of the ALJ's order is affirmed.
Entered at Salem, Oregon on September 17, 2014