Hammond v. Liberty Nw. Ins. Corp. (In re Comp. of Hammond)

437 P.3d 269, 296 Or. App. 241
CourtCourt of Appeals of Oregon
DecidedFebruary 27, 2019
DocketA163010
StatusPublished
Cited by4 cases

This text of 437 P.3d 269 (Hammond v. Liberty Nw. Ins. Corp. (In re Comp. of Hammond)) 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
Hammond v. Liberty Nw. Ins. Corp. (In re Comp. of Hammond), 437 P.3d 269, 296 Or. App. 241 (Or. Ct. App. 2019).

Opinion

ARMSTRONG, P. J.

*242Claimant, the surviving spouse of the injured worker, seeks review of an order of the Workers' Compensation Board holding that she is not entitled to death benefits. We conclude that the claim is not compensable, and we therefore affirm.

The facts are largely undisputed. Claimant's spouse, Hammond, who was travelling for work, had been diagnosed with and was undergoing treatment for metastatic lung cancer that had spread to his bones, causing fractures. As Hammond walked through a hotel lobby, his left femur fractured due to weakness caused by the presence of the cancer in the bone. The medical evidence is undisputed that the metastatic lung cancer was the major contributing cause of the weakening. Hammond died seven days later.

Employer denied claimant's claim for a left leg injury and death benefits, explaining that "[i]nformation obtained during this investigation fails to establish the left leg injury resulting in death is compensably related to a work injury or work exposure." Before the administrative law judge (ALJ), claimant contended that, because Hammond was travelling for work, any injury sustained during the travel was compensably related to his employment. Employer took the position that Hammond's leg fracture was idiopathic and not materially related to his work. But, assuming that claimant was able to establish that the fracture was an "otherwise compensable condition" that had a material relationship to the employment, employer contended that the major contributing cause of Hammond's fracture was his preexisting cancer. The ALJ upheld the denial, reasoning, alternatively, that the cancer was a preexisting condition that was the major contributing cause of claimant's death, or that Hammond's fracture was idiopathic and did not arise out of his employment.

The board did not address employer's contention or the ALJ's conclusion that the fracture was idiopathic. Instead, the board analyzed the injury claim as a combined *243condition under ORS 656.005(7)(a)(B).1 The board reasoned as follows: Because Hammond was a travelling employee, his walking through the hotel lobby arose out of his employment. The board then cited medical evidence that the fracture was caused by claimant's bearing weight while walking that immediately combined with the cancerous tumor. The board found that the weight bearing was a material contributing cause of Hammond's fracture, which the board therefore characterized as an "otherwise compensable injury." But, finding that the cancer was a preexisting condition under ORS 656.005(24) and that the preexisting cancer was the major contributing cause of the fracture, the board determined that claimant had failed to meet her burden under ORS 656.005(7)(a)(B) to show that the otherwise compensable injury was the major contributing cause of the fracture. In light of that conclusion, the board upheld the denial of the injury claim and claim for death benefits.

On judicial review, claimant raises several challenges to the board's analysis. Claimant contends that the cancerous femur tumor was not legally cognizable as a preexisting condition because, although the metastatic cancer and its spread to the bones had been diagnosed previously, there had been no *271diagnosis of a tumor in the femur. We reject the contention. Even though the femur tumor had not been diagnosed, there is no dispute that it was a part of the cancer. We conclude that the board did not err in determining that Hammond's cancer, and its spread to his bones, was a preexisting condition, as defined in ORS 656.005(24).

Claimant contends that the analysis set forth in ORS 656.005(7)(a)(B) for combined condition claims does not apply in the context of a claim seeking benefits for death. Claimant notes that ORS 656.005(7)(a)(B) refers only to a combined condition causing or prolonging "disability or a need for treatment," and does not mention death. Thus, in *244claimant's view, the legislature intended to exclude claims for death benefits from the combined condition analysis, and only the material contributing cause standard of proof applies in this case.

The exception that claimant attempts to carve for death benefit claims is not supported by the statute's text. ORS 656.204 describes the benefits due "[i]f death results from a compensable injury." ORS 656.005(7), in turn, defines a "compensable injury" as an accidental injury arising out of and in the course of the employment requiring medical services and resulting in disability or death. ORS 656.005(7)(a)(B) describes a limitation to the definition of a compensable injury when an "otherwise compensable injury" combines with a preexisting condition "to cause or prolong disability or a need for treatment." In that context, benefits resulting from a combined condition are available only if the otherwise compensable injury is the major contributing cause of the disability or need for treatment of the combined condition; there is no exclusion when the injury also results in the worker's death. Here, the board found that the fractured femur was a combined condition, and there is no dispute that it caused or prolonged Hammond's disability and the need for treatment. We reject claimant's contention that the combined condition analysis does not apply when a claimed injury also contributes to the worker's death.

Finally, in a supplemental brief, claimant contends that the Supreme Court's opinion in Brown v. SAIF , 361 Or. 241, 391 P.3d 773 (2017), decided after the board's order and after the initial briefing in this case, necessitates a different analysis from that applied by the board here and therefore requires a remand for reconsideration. Brown involved an accepted injury claim for a lumbar strain that was found to have combined with a preexisting degenerative back condition. The question in Brown

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Cite This Page — Counsel Stack

Bluebook (online)
437 P.3d 269, 296 Or. App. 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammond-v-liberty-nw-ins-corp-in-re-comp-of-hammond-orctapp-2019.