DeBoard v. Meyer

397 P.3d 37, 285 Or. App. 732
CourtCourt of Appeals of Oregon
DecidedMay 24, 2017
Docket1302758; A157107
StatusPublished
Cited by3 cases

This text of 397 P.3d 37 (DeBoard v. Meyer) 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
DeBoard v. Meyer, 397 P.3d 37, 285 Or. App. 732 (Or. Ct. App. 2017).

Opinion

FLYNN, J. pro tempore

Claimant seeks review of an order of the Workers’ Compensation Board that upheld employer’s denials of her claim that employer add to her accepted 2012 injury claim the new or omitted condition of disc “protrusions” in the thoracic spine. The board adopted the determination of the administrative law judge (ALJ) that claimant’s undisputed disc pathology of the thoracic spine was a degenerative disc “bulges” condition that is not “equivalent” to disc “protrusions,” and that claimant, therefore, failed to prove the existence of the claimed condition. Claimant argues that the board erred in relying on the diagnosis for the bulge condition as the basis for upholding employer’s denials. We conclude, however, that the board found as a factual matter that the diagnoses describe distinct conditions and that the “disc bulge” condition from which claimant suffers is not encompassed within the scope of her claim for a new or omitted condition of “disc protrusions.” We also conclude that those findings are supported by substantial evidence and, accordingly, affirm.1

The historical facts are not in dispute and are taken from the board’s findings.2 Claimant has been employed by Fred Meyer (employer) for more than 13 years as a bakery manager. In 2001, employer accepted a claim for a nondis-abling thoracic strain. Claimant sporadically sought treatment for thoracic pain over the next decade, but, just before the 2012 injury incident, claimant’s back was “fine.” The compensable injury at issue here arose from lifting incidents on the day before Thanksgiving, 2012. First, claimant was stacking items when she felt a sharp pain in her mid-back. Then, later that day, claimant was lifting cases of pumpkin pies when she felt upper thoracic symptoms. Employer accepted the claim for a disabling thoracic strain.

[734]*734Three months after the injury, claimant’s treating doctor, Bolstad, ordered a thoracic MRI that showed what the radiologist described as “disc protrusions” at three of claimant’s thoracic discs: “mild” and “slight” protrusions at T6-7 and T8-9, and a “moderate” protrusion at T7-8. Claimant submitted a claim for a “new or omitted medical condition” of “T-6 disc protrusion [and] T-7-8 disc protrusion with cord compression [and] T-8-9 disc protrusion.”3 Employer denied the claim, and claimant requested a hearing.4 The ALJ upheld employer’s denial on the ground that claimant had not proven the existence of the claimed new or omitted condition of disc “protrusions,” and the board adopted and affirmed the ALJ’s findings.

The evidence at the hearing included the opinions of four doctors who commented on the nature of claimant’s thoracic disc condition. Because the wording of those opinions forms the basis for the parties’ dispute, we quote extensively from those opinions where pertinent. Arbeene, whose opinion the board primarily relied upon, is an orthopedic surgeon who examined claimant at employer’s request. He reviewed the MRI image and described it as showing “multilevel degenerative disc disease changes in the mid thoracic disc spaces.” He concluded that claimant’s “disc abnormalities” were likely caused by non-work-related degenerative processes. Later, Arbeene agreed with a summary of his opinion that had been prepared by employer’s lawyer. He confirmed that, in his opinion, claimant had “a long history of thoracic spine symptoms” and “multilevel thoracic spondylosis and degenerative disc disease.” He agreed that the conditions had developed gradually over time and were unrelated “to a specific identifiable event or injury.” Arbeene did not object, however, to the attorney’s use of “disc protrusions” throughout the letter.

[735]*735In deposition testimony, Arbeene articulated the distinction that is now at the center of this case. He testified that the “more appropriate diagnosis and the more accurate diagnosis is multilevel thoracic spondylosis,” by which he meant “the presence of disc bulging, not disc protrusions.”5 He acknowledged that “if you ask five different doctors what they mean by ‘disc bulging’ versus ‘disc protrusions,’ you might get five different answers.” In Arbeene’s opinion, however, the two terms refer to separate conditions that differ both in appearance and etiology. A disc bulge is “very broad based *** whereas in a protrusion the height of the disc bulge or abnormality is basically equal to the base of the disc bulge.” A bulge, which Arbeene equated with thoracic spon-dylosis or general disc disease, arises as a degenerative process, while a protrusion occurs traumatically. He explained that claimant’s kyphoscoliosis, or improper curvature of the spine, causes compression on her vertebrae and discs at the T6 through T9 levels, “so she has a good anatomic explanation for this multilevel spondylosis or disc-degeneration at those three thoracic levels.” Thus, “the major cause for the disc bulges is the degenerative process resulting from her kyphoscoliosis.”

Rokosz, a neurosurgeon with whom claimant consulted shortly after the MRI, reported that the MRI shows “very mild disc degeneration” with a “slight bulge” at T8 and a “bulge” at T7-8. He “explained to the patient that it can be very difficult to know where someone’s pain is coming from, especially in the thoracic spine,” and he recommended “chiropractic evaluation as they are quite adept at evaluating and treating rib abnormalities,” which he believed to be partly causing claimant’s pain.

The other two doctors used the terms “bulge” and “protrusion” interchangeably. They also recognized that claimant has degenerative changes in the thoracic spine yet described her condition as work related. Bolstad opined that, in addition to Arbeene’s diagnoses of thoracic strain and spondylosis, she would add “[m]ild central disc protrusion at T6-7 with mild cord compression, moderate right paracentral [736]*736disc protrusion T7-8 with moderate cord compression and right paracentral disc protrusion T8-9.” She also wrote that an MRI of claimant’s spine from 2008 showed “mild degenerative change with disc space narrowing at T6-7 and T7-8” with “[m]inimal posterior disc bulge.” In later reports, Bolstad opined that claimant’s current condition was due to “disc protrusions” and that claimant’s injury “is the major contributing cause for her need for treatment.”

Russo, a pain specialist, reported that the MRI showed “disc protrusion at T6-7, T7-8, and T8-9.” After examining claimant, Russo diagnosed “[tjhoracic spondylo-sis [with] multilevel disc bulges at T7-8, T8-9.” Russo later wrote that claimant had “disc bulges/protrusions” at “these levels” and that she had “multi-disc disease,” but that her “pain, spasm, and symptom interference is in excess of what would be expected [from] solely a pre-existing degenerative process.”

The ALJ concluded that Arbeene’s opinion was “the most detailed, well reasoned and persuasive on the threshold issue of the ‘existence’ of the claimed disc protrusion conditions.” The ALJ explained that, although Bolstad and Russo had diagnosed “protrusions,” or “bulges/ protrusions,” and had at times used the terms interchangeably, Arbeene had explained the physical details that characterize different types of disc abnormalities. The ALJ emphasized that Rokosz had described claimant’s condition as “bulges,” and the ALJ discounted Russo’s opinion due to his unexplained shift in diagnosis from “bulges” to “bulges/ protrusions.”

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Related

Marsh v. Saif Corp. (In re Comp. of Marsh)
442 P.3d 1122 (Court of Appeals of Oregon, 2019)
Fred Meyer Stores, Inc. v. Deboard (In re Deboard)
422 P.3d 322 (Court of Appeals of Oregon, 2018)
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408 P.3d 406 (California Supreme Court, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
397 P.3d 37, 285 Or. App. 732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deboard-v-meyer-orctapp-2017.