De Los-Santos v. Si Pac Enterprises, Inc.

373 P.3d 1274, 278 Or. App. 254, 2016 Ore. App. LEXIS 558
CourtCourt of Appeals of Oregon
DecidedMay 11, 2016
Docket1103363; A157315
StatusPublished
Cited by6 cases

This text of 373 P.3d 1274 (De Los-Santos v. Si Pac Enterprises, Inc.) 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
De Los-Santos v. Si Pac Enterprises, Inc., 373 P.3d 1274, 278 Or. App. 254, 2016 Ore. App. LEXIS 558 (Or. Ct. App. 2016).

Opinion

LAGESEN, J.

Claimant petitions for review of a final order of the Workers’ Compensation Board. In that order, the board upheld insurer’s denial of claimant’s “new medical or omitted medical condition” claim under ORS 656.267.1 Finding no error by the board, we affirm.

Claimant accidentally injured her back at work and made a claim for workers’ compensation benefits for that injury. Insurer concluded that claimant had suffered a com-pensable injury and accepted her claim. As required by ORS 656.262(6)(b)(A),2 insurer’s notice of acceptance specified the accepted condition that insurer found to be compensa-ble: “lumbar strain.”

After approximately 22 months of treatment, claimant initiated a new or omitted condition claim as permitted by ORS 656.267(1). As required by the statute, [256]*256claimant requested insurer to formally accept the condition of “radiculopathy/radiculitis” as part of her compensable injury. Insurer denied claimant’s request to accept that condition, finding that the “medical evidence fails to support that the claimed conditions are compensably related to your industrial injury.”

Claimant requested a hearing before an administrative law judge (ALJ) as permitted by ORS 656.267. The ALJ upheld insurer’s denial. Claimant then sought review before the board, which also upheld insurer’s denial in a divided decision. The board reasoned that, to prevail, claimant was required to prove both that the condition for which she requested acceptance exists, and that her work injury was at least a material contributing cause of that condition. The board then canvassed the medical evidence in the record and found that it was not persuaded by that evidence that the claimed radiculopathy/radiculitis condition exists. Alternatively, the board found that, even if the condition exists, the condition does not have a sufficient causal relationship to her work injury to render it compensable. A dissenting board member would have found both that the claimed condition exists and that claimant’s work injury is a material contributing cause of her need for treatment for that claimed condition.

Claimant sought reconsideration before the board, arguing that the board erred in concluding that she was required to demonstrate that her claimed radiculitis/radiculopathy condition exists. Citing Boeing Aircraft Co. v. Roy, 112 Or App 10, 827 P2d 915 (1992), and K-mart v. Evenson, 167 Or App 46, 1 P3d 477, rev den, 331 Or 191 (2000), claimant argued, among other things, that she need only establish that her claimed symptoms were attributable to the work injury in order to demonstrate that insurer was required to accept her claimed radiculitis/radiculopathy condition. She also disputed the board’s analysis and conclusion regarding the causal connection between her work injury and claimed condition. The board responded to claimant’s request by issuing an order on reconsideration, in which it adhered to its original decision. The dissenting board member adhered to her previous dissent.

[257]*257On review, claimant argues that the board committed legal error when it held that she was required to prove that her claimed radiculopathy/radiculitis condition exists in order to prevail on her claim under ORS 656.267 that insurer is required to accept that condition. Although it is not entirely clear to us what standard claimant believes should apply, it appears that claimant is arguing that she may establish her claim for a new or omitted condition by demonstrating that she suffers from symptoms related to her workplace injury. Claimant requests that we remand the case to the board to reevaluate the evidence under that different legal standard.

We are unable to discern any legal error in the board’s conclusion that claimant must prove the existence of the claimed new or omitted condition. That conclusion is consistent with the applicable statutes and with our case law governing claims for new or omitted conditions.

As an initial matter, ORS 656.266 places the burden “of proving the nature and extent of any disability resulting” from a compensable workplace injury on the claimant. ORS 656.266(1). The accepted conditions provide the mechanism by which such disability is assessed. See generally ORS 656.268; see also SAIF v. Bales, 274 Or App 700, 708, 360 P3d 1281 (2015) (“An insurer’s acceptance of a new or omitted condition triggers additional obligations such as the obligation to pay permanent disability related to the condition.”). That suggests to us that the legislature intended that a claimant would bear the burden of proving the existence of a claimed new or omitted condition in the context of a claim under ORS 656.267 for the acceptance of a new or omitted condition.

In addition, our case law is clear that, to prevail on a new or omitted condition claim under ORS 656.267, a claimant must establish—with medical evidence—that the claimant, in fact, has a condition. Young v. Hermiston Good Samaritan, 223 Or App 99, 107, 194 P3d 857 (2008). A claimant cannot prevail on such a claim by demonstrating mere symptoms. Id. In Young, for example, we affirmed a board order affirming an employer’s denial of a new or omitted condition claim for radiculopathy where substantial [258]*258evidence supported the board’s finding that the claimed radiculopathy was merely a symptom and did not rise to the level of a condition. Id. It follows from Young that, to prevail on a new or omitted condition claim under ORS 656.267, the claimant must prove that the claimed new or omitted condition not only exists, but also qualifies as a condition, rather than a mere symptom.

As she did below, claimant argues that our decisions in Boeing Aircraft Co. and K-mart, together with our more recent decision in Horizon Air Industries, Inc. v. Davis-Warren, 266 Or App 388, 337 P3d 959 (2014), require a different conclusion. However, none of those cases addressed what a claimant must establish in order to prevail on a new or omitted condition claim under ORS 656.267. Rather, each of those cases addressed what showing must be made to establish a compensable injury. Here, the issue is not whether claimant has suffered a compensable injury; it is undisputed that she has.

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Cite This Page — Counsel Stack

Bluebook (online)
373 P.3d 1274, 278 Or. App. 254, 2016 Ore. App. LEXIS 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/de-los-santos-v-si-pac-enterprises-inc-orctapp-2016.