Carter v. Waste Mgmt. Disposal Servs. of Or. (In re Comp. of Carter)

444 P.3d 533, 298 Or. App. 430
CourtCourt of Appeals of Oregon
DecidedJuly 3, 2019
DocketA166470
StatusPublished

This text of 444 P.3d 533 (Carter v. Waste Mgmt. Disposal Servs. of Or. (In re Comp. of Carter)) 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
Carter v. Waste Mgmt. Disposal Servs. of Or. (In re Comp. of Carter), 444 P.3d 533, 298 Or. App. 430 (Or. Ct. App. 2019).

Opinion

JAMES, J.

*431Claimant seeks judicial review after the Workers' Compensation Board upheld employer's denial of his aggravation claim. On review, claimant argues that the board applied the wrong legal standard to determine compensability: Rather than assessing the persuasiveness of the competing medical opinions, the board applied a per se rule that the opinion of a claimant's treating physician is insufficient to establish compensability unless that opinion specifically responds to or rebuts the opinion of the physician who conducted an independent medical examination (IME). In claimant's view, the board's use of that per se rule effectively raised the standard of proof beyond the statutorily imposed preponderance-of-the-evidence standard. Although we agree with claimant that such a per se rule is inconsistent with the statutory scheme, we are not persuaded that the board applied such a rule in this case. Accordingly, we affirm.

Claimant was injured at work in June 2013 while moving a pipe, and employer's claims administrator accepted his claim for a lumbosacral sprain /strain. Thereafter, Dr. Armerding became claimant's treating physician, and Armerding declared claimant medically stationary in January 2014. Claimant returned to Armerding in September 2015, reporting recurrences of pain that had severely limited his ability to function at home or at work. Armerding assessed a lumbosacral strain and indicated that the pattern suggested facet joint dysfunction with secondary pain and spasm, and could represent intermittent spinal root irritation or impingement from disc pathology or other source.

Claimant and Armerding completed a form for reporting "aggravation of original injury," and claimant was released for light-duty work and referred for an MRI scan. The MRI revealed moderate disc protrusions at L2-3 and L3-4, and claimant returned to Armerding on September 23, reporting that September had been his worst month ever in terms of back pain. Armerding continued to assess a lumbosacral strain and opined that claimant's work activities over the preceding eight years, including the "acute sprain/

*432strain injury of 2013," were a material cause of the facet joint arthrosis and degenerative changes seen on the MRI.

Employer requested an IME, which was performed by Dr. Laycoe, an orthopedic surgeon. Laycoe diagnosed a lumbosacral sprain /strain related to the June 2013 incident and degenerative disc disease at L1-2, L2-3, and L3-4, with mild facet joint arthritis at L3-4 and L4-5, and secondary disc protrusions at L2-3 and L3-4. Laycoe opined that claimant had a combined condition of the lumbar strain from June 2013 and a preexisting arthritic condition of degenerative disc disease with facet arthritis. He further opined that claimant's symptoms in 2014 and 2015 were due to the degenerative disc disease and facet arthritis, not the low lumbar strain.

*535Claimant returned to Armerding on October 21, 2015, again reporting that his back pain over the preceding two to three months had been the worst and most prolonged since his workplace injury. Armerding assessed a lumbosacral ligament strain and continued claimant's light duty work restrictions.

On October 27, 2015, employer's claims processor issued a denial of aggravation of claimant's accepted sprain/ strain condition, asserting that claimant had not sustained a worsening of his injury from June 2013. Claimant requested a hearing on the denial before an administrative law judge (ALJ).

In advance of the scheduled hearing, Laycoe provided an addendum to his IME report. In that addendum, Laycoe opined that soft tissue injuries like claimant's heal in the course of two months, and that sprains or strains usually do not "worsen"; that "there is no clinical objective evidence of worsening"; that he disagreed with Armerding's opinion that a pathological worsening can only be confirmed by tissue specimen; that claimant has degenerative disc disease, and that there was "absolute correlation" with subjective symptoms and objective findings that "are beyond question as to diagnosis"; and that the cause of claimant's present condition and symptoms is degenerative disc disease rather than a recurrent lumbosacral sprain.

*433In a conference call with the ALJ on the day before the hearing, the parties agreed to cancel the hearing because neither party needed to present witness testimony. However, the evidentiary record was left open for, among other things, a possible rebuttal report from Armerding in response to Laycoe's addendum. For whatever reason, claimant never submitted a rebuttal report, and the evidentiary record was closed.

The ALJ subsequently issued an order upholding the denial of claimant's aggravation claim. The ALJ understood Armerding to have opined that, based on objective findings, claimant had sustained an actual worsening of the accepted lumbosacral strain condition. See ORS 656.273(1) ("A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings."). But the ALJ ultimately concluded that Armerding's opinion was insufficient, because he had not addressed Laycoe's addendum:

"[W]hile Dr. Armerding did opine that claimant suffered an actual worsening of his accepted low back condition, he did not address the opinion of Dr. Laycoe. Dr. Laycoe attributed claimant's symptoms solely to degenerative disc disease, and opined that claimant's symptoms were consistent with that condition, also noting that a soft tissue sprain or strain would have resolved within two months from the injury. He pointed to specific findings on examination, as well as the MRI scan, in support of his opinion. While Dr. Armerding acknowledged the MRI findings, and had previously attributed claimant's symptoms to facet joint pain, he did not explain why he believed claimant's symptoms were representative of a worsening of the accepted strain condition, nor did he address Dr. Laycoe's opinion regarding claimant's degenerative condition . For these reasons, I find Dr. Armerding's opinion insufficient to establish that claimant sustained a compensable aggravation claim for an actual worsening of the accepted lumbosacral strain / sprain condition. See Mark S. Parrott , 58 Van Natta 729, 733 (2006) (absence of analysis of opposing causation argument rendered physician's opinion insufficient to carry burden ); Carmen E. Russell , 56 Van Natta 399, 403 (2004). Accordingly, the October 27, 2015 denial is approved."

(Emphasis added; exhibit citations omitted.)

*434Claimant requested review by the board, arguing that, contrary to the ALJ's reasoning, Armerding's opinion had addressed and rebutted all of the arguments raised by Laycoe and that the board decisions cited by the ALJ, Mark S. Parrott and Carmen E. Russell

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Bluebook (online)
444 P.3d 533, 298 Or. App. 430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carter-v-waste-mgmt-disposal-servs-of-or-in-re-comp-of-carter-orctapp-2019.