Franke v. Lamb-Weston, Inc.

997 P.2d 876, 165 Or. App. 517, 2000 Ore. App. LEXIS 227
CourtCourt of Appeals of Oregon
DecidedFebruary 23, 2000
Docket96-04464; CA A102043
StatusPublished
Cited by2 cases

This text of 997 P.2d 876 (Franke v. Lamb-Weston, 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
Franke v. Lamb-Weston, Inc., 997 P.2d 876, 165 Or. App. 517, 2000 Ore. App. LEXIS 227 (Or. Ct. App. 2000).

Opinions

EDMONDS, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board (Board) that held that claimant had not carried her burden of proving that her current condition is work related. We review for errors of law and for substantial evidence and reverse. ORS 183.482(8).

After an appeal by claimant from the administrative law judge’s (AU) order that upheld employer’s denial, the Board adopted and affirmed the ALJ’s order. The ALJ found that on May 25,1995, claimant was injured at work when she experienced neck and shoulder pain as a result of turning over boxes of product. She was treated by various doctors in early June 1995, and Dr. Oltman became her attending physician on June 13. He concluded that claimant had suffered a soft tissue injury with possible nerve irritation, and he prescribed treatment consisting primarily of physical therapy. He released claimant to go back to light work as of July 2, 1995, and employer accepted claimant’s claim as a cervical strain condition.

Claimant was still experiencing symptoms in September 1995, and Oltman referred her to a neurosurgeon. As a result of his examination and a MRI, the neurosurgeon suggested treatment by a pain clinic. Claimant declined, requesting instead, a second opinion. Thereafter, she was seen by Dr. Keenen, who concluded that claimant had a cervical strain without evidence of disc herniation. He recommended physical therapy and claimant was taken off work.

In November 1995, claimant was evaluated by a panel of examiners. Dr. Laycoe and Dr. Watson indicated that they believed that claimant was suffering from chrome neck pain because of the over-use of her neck. They found no evidence of cellular or intervertebral disk problems. They did note that “functional overlay” was present. Dr. Davies, a psychologist, opined that “secondary gain” factors were present.

Claimant returned to work in January 1996. She underwent a second medical examination in April 1996 with Drs. Wilson and Klecan. The AU found,

[520]*520“* * * Dr. Wilson speculated claimant could have had an overuse syndrome without objective findings. In his opinion claimant was medically stationary with no further treatment needed and no impairment. The major cause of claimant’s condition, he added, was non-organic findings as opposed to the May 25, 1995 injury. Psychiatrist, Dr. Klecan, found no mental disorder or personality disorder present. Like Dr. Davies, he believed secondary gain factors were operating. Although, agreeing some somatization [1] was present, Dr. Oltman otherwise declined to concur with the IME opinions.
“On April 30, 1996, as amended on May 2, 1996, the employer issued a current condition denial on the basis the major cause of the present condition was no longer the May 25,1995 injury.”

On May 8, 1996, claimant returned to Keenen, who recommended anesthetic and steroid injections in claimant’s cervical area. Subsequently, Dr. Slack administered several injections to claimant’s spine. Thereafter, claimant rated her pain level as zero on a scale from 1 to 10 in response to Slack’s inquiry after receiving the injections. Before the hearing with the ALJ occurred, Oltman was deposed. Based on Slack’s report regarding the effect of the injections, he opined that claimant’s current condition was a physical result of her work injury.

In the part of her opinion labeled “CONCLUSIONS OF LAW AND OPINION,” the ALJ explained her reasoning in arriving at the conclusion that claimant had not carried her burden of persuasion and why she rejected Oltman’s opinion.

“On April 4, 1996, Drs. Wilson and Klecan examined claimant. In their respective reports, they concluded claimant’s present condition was subjective only, i.e., not an illness, injury or condition in the usual sense. Dr. Klecan explained nonanatomical and noninjury factors were now operating as the major cause. Prior to closure, and relying on the April 4, 1996 report, the employer issued a current [521]*521condition denial on the basis the accepted May 25, 1995 injury was no longer the major contributing cause of claimant’s chronic condition. ORS 656.262(7)(b).
“The evidence establishes claimant sustained a cervical injury on May 25, 1995. Despite extensive medical attention the injury developed into a chronic condition. Improvement has proven to be elusive. Thorough diagnostic testing has not revealed a physical basis for claimant’s continuing symptoms.
“Moreover, the medical issue has been compounded by the presence of psychological factors. Although not diagnosing a psychiatric illness or disorder, Dr. Klecan has described the noninjury factors as twofold: (1) a personal style of anxious, somatic over focus, and (2) external rewards coming in response to her anxious somatic over focus. Dr. Wilson described claimant as being very over focused on her somatic complaints. Dr. Keenen’s reports also suggest he does not disagree that a psychosomatic element is present. Even claimant’s attending physician, Dr. Oltman, has acknowledged the presence of some soma-tization. The evidence further supports the finding psychological factors combined with the May 25, 1995 injury to produce a combined condition.
“In this regard, ORS 656.005(7)(a)(B) provides that if a otherwise compensable injury combines at any time with a preexisting disease or condition to cause or prolong disability or the need for treatment the combined condition is com-pensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition. Under the statute, the quantitative contribution of each cause must be weighed to establish the primary cause of claimant’s need for treatment. SAIF v. Nehl, 148 Or App 101, on recon 149 Or App 309 (1997).
“The preponderance of the evidence establishes claimant’s current cervical condition is not supported by objective findings of a physical injury. This is the assessment of the doctors who have examined claimant. Even assuming, the presence of residuals from the May 25,1995 injury, the evidence is not convincing the injury remains the major contributing cause of claimant chronic cervical condition. [522]*522Rather, the evidence points to psychological factors in explaining claimant’s current condition.
“In contrast, it was the opinion of Dr. Oltman [that] claimant’s continuing symptoms were due to a physical as opposed to psychological condition based on the fact claimant showed improvement] after being injected by Dr. Slack in late May 1996. In his deposition Dr. Oltman stated that if claimant had declared 100 percent improvement within a few minutes of being injected, he would have suspected more of a psychological component. As it was, she had a history of delay with substantial improvement noted 10 days post injection leading Dr. Oltman to think inflammation was present in the area injected. Thus, he was more convinced of a physically based condition.

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Bluebook (online)
997 P.2d 876, 165 Or. App. 517, 2000 Ore. App. LEXIS 227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franke-v-lamb-weston-inc-orctapp-2000.