Blank v. US Bank

287 P.3d 1272, 252 Or. App. 553, 2012 WL 4381913, 2012 Ore. App. LEXIS 1184
CourtCourt of Appeals of Oregon
DecidedSeptember 26, 2012
Docket1000922; A149267
StatusPublished
Cited by5 cases

This text of 287 P.3d 1272 (Blank v. US Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blank v. US Bank, 287 P.3d 1272, 252 Or. App. 553, 2012 WL 4381913, 2012 Ore. App. LEXIS 1184 (Or. Ct. App. 2012).

Opinion

HADLOCK, J.

This workers’ compensation case involves a claimant who fell while on her employer’s premises and sustained injuries. The Workers’ Compensation Board upheld employer’s denial of her claim, and claimant seeks review. The issue is whether the board erred in concluding that claimant’s fall was not compensable because it did not “aris[e] out of” a risk of her employment. ORS 656.005(7)(a) (a “compensable injury” is one “arising out of and in the course of employment”); Phil A. Livesley Co. v. Russ, 296 Or 25, 30, 672 P2d 337 (1983). We review the board’s order for substantial evidence and errors of law under ORS 656.298(7) and ORS 183.482(8), and affirm.

The relevant historical facts are uncontested. Claimant works as a loan document specialist for employer. In 1997, claimant was diagnosed with Churg-Strauss Syndrome (CSS), a rare and serious medical condition that causes inflammation of the blood vessels. CSS may affect many different parts of the body in several ways and, since her diagnosis, claimant has been treated for various complaints that likely are associated with her CSS, including asthma, joint and bone pain and stiffness, lethargy, decreased hearing, vertigo, and lower-extremity numbness. Claimant also suffers from obstructive sleep apnea.

During her morning work break on February 1,2010, claimant fell while she was alone in employer’s lunchroom and sustained injuries to her head, left shoulder, right wrist, and right toe. Claimant initially returned to work but was experiencing such discomfort by the afternoon that she left to seek treatment at a hospital emergency room. She reported to hospital staff that she had tripped, although she has since not been able to recall “whether she slipped, stumbled, became dizzy or faint, or simply lost her balance.” She certainly “did not lose consciousness.” No employment-related hazards were identified that could have contributed to claimant’s fall.

Employer’s insurer denied claimant’s initial workers’ compensation claim. Claimant requested a hearing, and then had an Independent Medical Evaluation [555]*555(IME) by neurologist Dr. Sean Green.1 Green opined in his IME report that the most likely cause of claimant’s fall could not be identified. He also reported that, although claimant had developed some peripheral neuropathy as a result of her CSS (which causes lower-extremity numbness), those symptoms wax and wane. Green conducted the IME two months after claimant’s fall and, at that time, Green reported that no evidence of postural instability, ataxia, or significant peripheral neuropathy was present. Green therefore reported that it was possible, although not probable, that claimant’s CSS “could have contributed to a loss of balance and her subsequent fall.”

Green later signed a concurrence letter, in which he agreed with employer’s legal counsel that claimant’s “medical history and the diagnosis of [CSS] clearly raises the possibility that idiopathic factors caused [claimant] to fall at work.” Green agreed that several symptomatic manifestations of CSS could have caused claimant to fall, such as balance deficiencies secondary to inner-ear problems or peripheral neuropathy/lower-extremity numbness. He also agreed that, “given the totality of information available * * * it is at least equally possible [that claimant’s] fall was caused by problems associated with [CSS] than [with] risks associated with employment.”

Green similarly testified during an August 2010 deposition that he thought it was more likely that claimant fell because of one of several idiopathic factors — including symptoms of her CSS and her sleep apnea problem — than because of a work-related risk. Green also acknowledged during his deposition, however, that because the primary symptoms of CSS are pulmonary, a neurologist would not normally treat CSS even though it does “sometimes cause neurologic symptoms.” CSS, Green testified, “is uncommon enough that I don’t have direct experience seeing patients with Churg-Strauss in clinic.” Green further testified that many of claimant’s nonneurological health complaints could be related to her CSS, but when asked to assess whether [556]*556certain examples that he had noted were, in fact, likely related to her CSS, Green testified that “coming from a neurologist,” any assessment that they were related would be a “guess.”

Claimant, for her part, testified that she experiences numbness in the bottom middle part of her left foot as a result of her CSS, but also said that numbness did not cause her to fall on February 1, 2010. According to claimant, she was not feeling dizzy, faint, or unwell, or having a flare-up of any CSS symptoms before her fall. She did state that her inner-ear problems are always present.

After considering that evidence, the ALJ set aside employer’s claim denial. In concluding that claimant’s injury arose from her employment, the ALJ reasoned that Green’s IME report corroborated claimant’s testimony that a flareup of her CSS or sleep-apnea symptoms did not cause her fall. The ALJ rejected Green’s conclusions in his concurrence letter and deposition testimony — that complications of CSS or sleep apnea were at least equally as likely to have caused the fall as work factors — because those assessments, the ALJ reasoned, represented an insufficiently explained change of opinion from Green’s earlier statements in his IME report. The ALJ also reasoned that Green’s causal assessments carried little evidentiary weight given his lack of experience in treating CSS. The ALJ therefore determined, based largely on claimant’s testimony and the IME report, that the cause for claimant’s fall was truly unknown, and that claimant’s fall was compensable as an “unexplained” fall.

The board reversed the ALJ’s order. Unlike the ALJ, the board found “no inconsistencies” between Green’s IME report and his later statements that balance deficiencies secondary to inner-ear problems, peripheral neuropathy/ lower extremity numbness, and claimant’s sleep apnea were all more likely to have caused claimant’s fall than work-related factors. Particularly noting Green’s testimony that many of claimant’s CSS symptoms wax and wane and that the effects of sleep apnea are “not predictable,” the board reasoned that, even in light of the IME report and claimant’s testimony, those factors could not be excluded as potential causes for the fall. The board concluded that claimant’s fall was not truly “unexplained,” and, therefore, that the fall was [557]*557not compensable. Claimant now seeks judicial review of the board’s order, challenging its determination that the claim is not compensable.

Under ORS 656.005(7)(a), “[a] ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability”:

“The Supreme Court has explained that, in order for a claim to be compensable, it must both occur in the course of the claimant’s covered employment and arise out of that employment. The requirement that the injury occur in the course of employment concerns the time, place, and circumstances of the injury.

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Cite This Page — Counsel Stack

Bluebook (online)
287 P.3d 1272, 252 Or. App. 553, 2012 WL 4381913, 2012 Ore. App. LEXIS 1184, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blank-v-us-bank-orctapp-2012.