Hutchings v. Americas Propane

365 P.3d 636, 275 Or. App. 579, 2015 Ore. App. LEXIS 1545
CourtCourt of Appeals of Oregon
DecidedDecember 23, 2015
Docket1003960, 1003489; A151719
StatusPublished
Cited by3 cases

This text of 365 P.3d 636 (Hutchings v. Americas Propane) 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
Hutchings v. Americas Propane, 365 P.3d 636, 275 Or. App. 579, 2015 Ore. App. LEXIS 1545 (Or. Ct. App. 2015).

Opinion

ORTEGA, P. J.

Claimant challenges a Workers’ Compensation Board order that upheld employer’s “combined condition” denial and employer’s denial of claimant’s request for medical services.1 On judicial review, claimant contends that employer’s combined condition denial was improper because employer failed to prove that claimant had a preexisting condition at the time of his work injury and, thus, the preexisting condition identified by employer could not have been the major contributing cause of claimant’s disability and need for treatment. As for employer’s medical services denial, claimant argues that his referral to an orthopedic surgeon for an evaluation of the nature and extent of his work injury should have been covered under ORS 656.245(1)(a) because it was “directed to” his compensable injury. We conclude that the record does not support the board’s conclusion regarding the existence of a preexisting condition and that, consequently, employer’s medical services denial was likewise in error. Accordingly, we reverse and remand the board’s order.

To provide necessary context to the factual and procedural history that follows, we provide the legal framework that governs employer’s combined condition denial. Generally, under the Workers’ Compensation Law, a “com-pensable injury” includes an accidental injury “arising out of and in the course of employment requiring medical services or resulting in disability or death.” ORS 656.005(7)(a). However, where an “otherwise compensable injury” combines with a “preexisting condition” to cause or prolong disability or the need for treatment, the resulting “combined condition” is compensable only as long as the otherwise compen-sable injury is the major contributing cause of the disability or need for treatment of the combined condition. Corkum v. Bi-Mart Corp., 271 Or App 411, 420-21, 350 P3d 585 (2015). In an industrial injury claim, a “preexisting condition” is an “injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment,” provided that the worker has been diagnosed with the condition, or has obtained medical services for the [582]*582symptoms of the condition (regardless of diagnosis) before the initial injury.2 ORS 656.005(24)(a)(A), (B)(i) (emphasis added). However, “a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury.” ORS 656.005(24)(c). And finally, after accepting a combined condition, the employer may deny it if the otherwise compensable injury ceases to be the major contributing cause of the combined condition. ORS 656.262(6)(c), (7)(b).

The following facts are undisputed. In early 2009, unrelated to work, claimant experienced a loss of sensation in his left leg, along with neck and back pain. He visited Dr. Conklin, who ordered an MRI and referred claimant to Dr. Camp. After further imaging showed substantial abnormality of the cervical spine, including injury at the C6-7 level indenting the anterior cervical cord, Camp diagnosed claimant with “cervical spondylotic myelopathy referable to cord compression” at the C5-6 and C6-7 levels. An MRI showed a disc protrusion and osteophytic spurring at the C6-7 level and spondylotic degenerative changes at C3-4 through C5-6. As a result, Camp performed an anterior cervical discectomy and fusion at C5-6 and C6-7 on April 8, 2009. Claimant recovered well from the surgery, including increased range of motion in his neck and increased sensation in his left leg. Accordingly, he returned to light work duty shortly after the surgery, and full work duty in July 2009.

At the end of that month, on July 29, as claimant drove on a rural road, the front of his work truck dipped very suddenly and his “air-shock” seat catapulted him upwards, causing him to strike his head on the ceiling of the truck’s [583]*583cab. He immediately experienced pain in his neck. About a month later, claimant visited Conklin for “cervical symptoms.” A cervical X-ray showed the “C5 through C7 fusion” and “no acute abnormality.” Conklin referred claimant to Camp for further evaluation of the “nature and extent” of claimant’s injuries, but claimant’s initial attempts to secure appointments with Camp were unsuccessful.

Claimant filed a workers’ compensation claim in August 2009, which employer denied in October 2009. However, employer rescinded its denial and accepted a “non-disabling cervical strain” in January 2010. At employer’s request, Dr. Berselli conducted an independent medical examination (IME) in February 2010. In May, employer modified its acceptance to include a “nondisabling cervical strain, combined with preexisting spondylosis of the cervical spine at C5-6 and C6-7” effective the date of injury. That same day, employer issued a denial, stating:

“The medical evidence establishes your accepted non-disabling cervical strain ceased to be the major contributing cause of your disability and need for treatment of your combined condition as of February 9, 2010. The evidence establishes your preexisting cervical spondylosis of the cervical spine at C5-6 and C6-7 is the major contributing cause of your disability and need for treatment of the combined condition. This denial is based on Dr. Robert Berselli’s independent medical examination. Dr. Bryan Conklin disagreed with the evaluation.”

Meanwhile, claimant made additional unsuccessful attempts to schedule an appointment with Camp. On May 5, claimant asked employer to authorize Conklin’s referral of claimant to Camp or to indicate why employer refused to do so. Employer took the position that claimant’s disability and need for treatment was related to a noncompensable claim and that there was no requirement that an employer issue preauthorization for a consultation on a nondisabling or noncompensable claim.

Shortly thereafter, claimant disputed the combined condition denial and employer’s failure to authorize an examination by Camp for diagnostic purposes. Those disputes were consolidated for hearing. An administrative law judge (ALJ) held a hearing at which the parties introduced [584]*584medical evidence related to claimant’s condition. Of particular importance to the issues before us is medical evidence from three orthopedists — Drs. Gritzka, Berselli, and Gripekoven. Accordingly, we summarize that evidence to lend context to and aid our analysis of the board’s ultimate decision to uphold employer’s combined condition denial.

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Cite This Page — Counsel Stack

Bluebook (online)
365 P.3d 636, 275 Or. App. 579, 2015 Ore. App. LEXIS 1545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hutchings-v-americas-propane-orctapp-2015.