Freightliner Corp. v. Christensen

986 P.2d 1263, 163 Or. App. 191, 1999 Ore. App. LEXIS 1625

• Court: Court of Appeals of Oregon
• Decided: September 29, 1999
• Docket: 97-04701; CA A101687
• Status: Published

Opinions

WARREN, S. J.

Employer seeks review of an order of the Workers’ Compensation Board setting aside employer’s denial of claimant’s degenerative disc disease, spinal stenosis and herniated discs. We conclude that the Board’s finding that employer accepted the conditions is supported by substantial evidence and that the Board correctly held that employer may not now deny claimant’s conditions. Accordingly, we affirm.

In May 1996, claimant injured her back while working for employer. She sought treatment from Dr. Yarusso, who ordered multiple scans, including a CT scan and an MRI. The testing revealed that claimant had many problems. On May 28, 1996, Yarusso diagnosed spinal stenosis and herniated or bulging discs at L3,4 and 5, compromising her spinal canal and a possible herniation at L5-S1. On May 29, 1996, Dr. Tanabe diagnosed chronic lumber strain, superimposed upon spondylitic changes in the lumber spine and mild to moderate lumbar stenosis.

Claimant filed a Form 801, indicating that the nature of the injury was “HNP Back.” “HNP” means “herniated nucleus pulposus,” or herniated disc. Employer checked the “accepted” box on the Form 801. On May 31, 1996, employer issued a notice of acceptance for “low back pain r/o HNP.” Over the course of several months, doctors consistently diagnosed a herniated disc at L5-S1 with nerve root encroachment on the right side. Claimant began to undergo conservative treatment and ultimately received authorization to return to work. Medical opinions differ as to whether claimant’s May 1996 injury is a contributing factor in her ongoing symptomatology.

Before claim closure, on June 4, 1997, employer issued a denial stating, in part:

“[Employer] has accepted and processed your lumbar sprain/strain resulting from the May 16, 1996 injury. Drs James Yarusso and Franklin Wong both indicate that your injury combined with preexisting conditions (degenerative disc and joint disease, stenosis and herniation), that your condition is medically stationary, and the injury is no longer the major contributing cause of the combined condition. Pursuant to ORS 656.262(7)(b), [employer] is hereby denying that your accepted injury is the major contributing cause of your combined condition and submitting your claim for closure.”

Claimant protested the denial, and the Board set it aside, holding that employer had not accepted claimant’s lumbar sprain/strain as a “combined condition,” so it could not deny the preexisting conditions pursuant to ORS 656.262(7)(b). Rather, the Board held that, by accepting a claim for “back pain,” employer had accepted outright the underlying conditions causing the pain, including each of claimant’s preexisting back conditions. Employer seeks review of the Board’s order, making the alternative arguments that its acceptance did not include the underlying conditions or that, even after acceptance, it could deny those conditions pursuant to ORS 656.262(6) and (7). We consider each argument in turn.

We first consider the scope of employer’s acceptance. The Board rejected employer’s argument that the language of the acceptance, “r/o HNP,” indicated an intention to exclude a herniated disc or claimant’s degenerative conditions from the scope of the acceptance and to accept only a back sprain/ strain. The Board found that employer accepted a claim for “low back pain” and that claimant’s low back pain was caused in part by spinal stenosis and degenerative disc disease, including herniated or bulging discs. Relying on Georgia-Pacific v. Piwowar, 305 Or 494, 501, 753 P2d 948 (1988), the Board held that, by accepting claimant’s claim for low back pain, employer accepted the underlying cause or causes of the symptoms. The Board’s findings as to the scope of employer’s acceptance are supported by substantial evidence, and its conclusion with regard to the effect of Piwowar is correct. The question that remains is whether statutory provisions enacted since Piwowar provide authority for employer’s denial of the previously accepted conditions.

ORS 656.262(6)(a) provides, in part:

“If the insurer or self-insured employer accepts a claim in good faith, in a case not involving fraud, misrepresentation or other illegal activity by the worker, and later obtains evidence that the claim is not compensable or evidence that the insurer or self-insured employer is not responsible for the claim, the insurer or self-insured employer may revoke the claim acceptance and issue a formal notice of claim denial, if such revocation of acceptance and denial is issued no later than two years after the date of the initial acceptance. If the worker requests a hearing on such revocation of acceptance and denial, the insurer or self-insured employer must prove, by a preponderance of the evidence, that the claim is not compensable or that the insurer or self-insured employer is not responsible for the claim.” (Emphasis added.)

Employer asserts that the quoted, portion of subsection (6)(a) provides a ground for its denial of claimant’s herniated discs and that the Board erred in failing to consider that statute. In light of employer’s acknowledgment that it was aware of the possibility that claimant had herniated discs at the time it issued its acceptance of the claim, there was no error on the part of the Board in rejecting employer’s assertion that the claim could be denied on the basis of newly discovered evidence. For the same reason, we reject employer’s assertion that its denial is authorized by ORS 656.262(6), which provides, in part:

“(b) The notice of acceptance shall:

«* * * * *

“(F) Be modified by the insurer or self-insured employer from time to time as medical or other information changes a previously issued notice of acceptance.”

Employer asserts that, even assuming that the original acceptance included claimant’s herniated discs and her other degenerative conditions, those conditions were accepted as preexisting conditions that “combined” with claimant’s “otherwise compensable” injury of back strain, and that, under ORS ese.ORS 656.005(7)(a)(B),¹ ORS 656.262(6)(c)² and ORS 656.262(7)(b),³ employer may deny those conditions when the “compensable injury,” i.e., back strain, is no longer the major contributing cause of claimant’s combined condition. Employer asserts, further, that medical records shows that claimant’s back strain has resolved and causes less than 50 percent of her current condition. Accordingly, employer contends, its denial is valid, because the accepted injury is no longer the major contributing cause of the worker’s combined condition.

Employer misunderstands the effect of Piwowar and the significance of the scope of its acceptance. By accepting claimant’s low back pain, employer accepted all the conditions that the medical evidence shows underlie the low back pain, including claimant’s preexisting degenerative back conditions. Those conditions are accepted as compensable conditions in and of themselves, independent of the back strain. Although they may, in fact, combine with her back strain or sprain, it does not follow that employer’s acceptance was of a combined condition as a matter of law. Employer did not accept only claimant’s back sprain/strain. If it had, then claimant’s preexisting conditions could properly be viewed as preexisting conditions that combine with the accepted injury. Employer accepted claimant’s low back pain. Under Piwo-war, employer’s acceptance encompassed each condition causing the pain. They are, in and of themselves, independently compensable because they were accepted. The statutes that employer cites in support of its position are depend-ant on the existence of a combined condition in the legal sense. A combined condition in the legal sense is a compen-sable injury that combines with a preexisting condition or conditions. ORS 656.005(7)(b)(B). Here, the accepted conditions are each of the conditions that are deemed accepted under Piwowar. Although, as a matter of fact, the preexisting conditions did combine to give rise to claimant’s need for treatment, they are compensable in their own right as a matter of law under Piwowar and may not be denied.

For the reasons explained, we conclude that the Board did not err in setting aside employer’s denial of claimant’s condition.

Affirmed.

1 ORS 656.005(7)(a)(B) provides:

“If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable 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.”

2 ORS 656.262(6)(c) provides:

“An insurer’s or self-insured employer’s acceptance of a combined or consequential condition under ORS 656.005 (71, whether voluntary or as a result of a judgment or order, shall not preclude the insurer or self-insured employer from later denying the combined or consequential condition if the otherwise compensable injury ceases to be the major contributing cause of the combined or consequential condition.”

3 ORS 656.262(7)(b)provides:

“Once a worker’s claim has been accepted, the insurer or self-insured employer must issue a written denial to the worker when the accepted injury is no longer the major contributing cause of the worker’s combined condition before the claim may be closed.”