Garoutte v. Mail Well Corp.

115 P.3d 957, 200 Or. App. 507, 2005 Ore. App. LEXIS 821
CourtCourt of Appeals of Oregon
DecidedJuly 6, 2005
Docket02-02789; A121646
StatusPublished
Cited by3 cases

This text of 115 P.3d 957 (Garoutte v. Mail Well Corp.) 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
Garoutte v. Mail Well Corp., 115 P.3d 957, 200 Or. App. 507, 2005 Ore. App. LEXIS 821 (Or. Ct. App. 2005).

Opinion

ARMSTRONG, J.

Claimant seeks review of an order of the Workers’ Compensation Board, contending that the board erred in upholding employer’s denial of his claim for degenerative arthritis in his left knee. We reverse and remand.

The facts are largely undisputed. Claimant has worked for employer since 1978. He compensably injured his left knee in 1984 while working for employer as a pressman. SAIF, employer’s insurer at the time, accepted the claim and paid for arthroscopic surgery. The claim was closed in June 1986, with an award of 15 percent permanent partial disability. Claimant had no further problems with his knee until October 24, 2000, when he twisted it while working for employer. Employer’s current insurer, GAB, accepted a left knee medial meniscus tear and also authorized and paid for surgery. The claim closed with an award of 12 percent permanent partial disability.

After claim closure, claimant requested that GAB amend its notice of acceptance to include degenerative arthritis “as either a new or omitted condition or as a consequential condition.” See ORS 656.262(7) (1999).1 GAB amended its acceptance to include a partial medial meniscus tear of the left knee but denied the arthritic condition, explaining that [510]*510the condition was not compensable, either as a consequence of the October 24, 2000, accepted injury under ORS 656.005(7)(a)(A), or as a condition that combined with the October 24, 2000, injury under ORS 656.005(7)(a)(B), because the major contributing cause of the condition was the 1984 injury and surgery. Employer stated:

“The medical evidence indicates that your ‘degenerative arthritis’ is not a consequential condition of the October 24, 2000 accepted injury, and we are unable to accept this condition, ORS 656.005(7)(a)(A); we also are unable to accept the ‘degenerative arthritis’ claim under ORS 656.005(7)(a)(B).”

Claimant requested a hearing on employer’s denial of the arthritic condition. An administrative law judge (ALJ) upheld the denial, as did the board.

It is undisputed that claimant’s arthritis condition is work related. The parties also appear to agree that the arthritis condition is a new medical condition. Claimant sought to establish the compensability of the condition by proving that it was caused in major part by the successive compensable injuries and surgeries and that claimant’s October 24, 2000, injury while GAB was on the risk independently contributed to the condition. GAB argued to the board that, “[a]s postured, the matter was strictly a dispute over whether GAB’s notice of acceptance of the 2000 date of injury claim was incomplete or inadequate.” It asserted that the claim was not an initial claim for the arthritis condition as an occupational disease but a request to accept the arthritis as a consequence of the specific October 24, 2000, injury. Necessarily, GAB asserted, the condition’s compensability is dependent on its relationship to the October 24, 2000, accepted injury.

In affirming the order of the administrative law judge, the board agreed with GAB’s analysis that, to establish the compensability of the arthritis as a new medical condition claim against GAB based on the theory that it is a consequential condition, claimant must establish that the condition is related to the October 24,2000, injury. The board found that the arthritis was a consequential condition2 and [511]*511that the major contributing cause of the consequential condition was the first injury and surgery, which occurred while SAIF was employer’s insurer. Having found that the major contributing cause of the consequential condition was the 1984 injury and surgery, the board reasoned that claimant had failed to establish the compensability of the concededly work-related condition as to GAB.

On review, claimant asserts that the board erred when it limited the inquiry to whether claimant had established a sufficient relationship between the arthritis condition and the October 24,2000, injury for which only GAB was responsible and failed to consider whether the condition is compensable either as a consequence of the two compensable injuries together or as a separate occupational disease. In effect, claimant contends, the board’s narrow focus permitted GAB to introduce into the dispute the question of its responsibility for a condition that is concededly work related without first having issued a denial of responsibility under ORS 656.308.3

We need not address whether the board’s order raises issues under ORS 656.308. As we have said, the board analyzed claimant’s arthritis condition as a consequential condition, ORS 656.005(7)(a)(A),4 and found that the major [512]*512contributing cause of the condition was the 1984 injury and surgery. That finding is supported by substantial evidence. An injury is compensable if it arises out of and in the course of the employment, except that “no injury is compensable as a consequence of a compensable injury unless the compensa-ble injury is the major contributing cause of the consequential condition.” Id. Claimant established that his arthritis condition is work related and that the major contributing cause of the condition is a compensable injury. He has, accordingly, established the compensability of the condition and has thereby avoided the exclusion described in ORS 656.005(7)(a)(A).

Contrary to the board’s reasoning, it makes no difference that the claim was filed only against GAB. As we have held, a claimant may rely on the last injurious exposure rule of proof to establish the compensability of a claim against a single employer by showing that work conditions in general are the cause of the condition. Bennett v. Liberty Northwest Ins. Corp., 128 Or App 71, 875 P2d 1176 (1994). To establish the compensability of the degenerative knee condition as a consequential condition under ORS 656.005(7)(a)(A), claimant was required to establish that “a compensable work injury” was its major contributing cause. He was not required to establish that the injury accepted by GAB was the major contributing cause of the condition. The board’s reading of the statute would require inserting after “a compensable injury” the words “with the insurer against whom the claim is filed.” We will not insert into a statute what has been omitted. ORS 174.010; PGE v.

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Related

SAIF Corp. v. Durant
350 P.3d 489 (Court of Appeals of Oregon, 2015)
Kirby v. SAIF Corp.
162 P.3d 1063 (Court of Appeals of Oregon, 2007)
Garoutte v. Mail-Well Corp.
115 P.3d 957 (Court of Appeals of Oregon, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
115 P.3d 957, 200 Or. App. 507, 2005 Ore. App. LEXIS 821, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garoutte-v-mail-well-corp-orctapp-2005.