Jocelyn v. Wampler Werth Farms

888 P.2d 55, 132 Or. App. 165, 1994 Ore. App. LEXIS 1958

• Court: Court of Appeals of Oregon
• Decided: December 28, 1994
• Docket: WCB 92-08595; CA A80290
• Status: Published

Opinions

WARREN, J.

Claimant seeks review of an order of the Workers’ Compensation Board, contending that the Board erred in determining that his aggravation claim is not compensable, because he has not satisfied the requirement of ORS 656.005(7)(a)(B) and shown that the initial compensable injury is the major contributing cause of his worsened condition. We reverse.

Claimant experienced a compensable low back injury in 1987 while working for employer. The injury was diagnosed as a strain, superimposed on a preexisting, non-work related degenerative disc condition. Before and after the 1987 injury, CT scans revealed that claimant had a bulging disc at L4-L5, and that that condition had remained unchanged. Employer accepted the claim and it was closed in 1988. It was reopened in 1989 and 1990 for awards of permanent partial disability.

In March, 1992, defendant was at home when he sneezed while bending over to tie his shoe. He felt immediate sharp pain in his back. Claimant tried to work, but could not. A CT scan revealed increasing disc derangement and herniation at L4-L5. Claimant’s doctors recommended a diskectomy and fusion. Claimant filed an aggravation claim under ORS 656.273 for the worsening of his accepted condition, which employer denied. The referee found that the medical evidence shows that claimant’s 1987 injury is not the major contributing cause of his current increased disc herniation. The Board, in affirming the referee, held that, because claimant’s current condition is caused by a combination of his compensable injury and his preexisting disc condition, he is required to show, pursuant to ORS 656.005(7)(a)(B), that the compensable 1987 injury is the major contributing cause of the worsened condition. The question on review is whether the Board was correct to apply that standard of proof of causation to claims for aggravation under ORS 656.273.

A claimant is entitled to additional compensation for the worsening of an accepted condition, pursuant to ORS 656.273(1), which provides, in part:

“After the last award or arrangement of compensation, an injured worker is entitled to additional compensation, including medical services, for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence supported by objective findings. However, if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable.”

The Board held that, because claimant had a preexisting back condition, in order to prove a claim for aggravation under ORS 656.273, claimant had to prove that the accepted compensable injury was the major contributing cause of the worsened condition, pursuant to ORS 656.005(7)(a)(B). That subparagraph provides:

“If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or a need for treatment, the resultant condition is compensable only to the extent the compensable injuiy is and remains the major contributing cause of the disability or need for treatment.”

Because claimant did not prove that the compensable injury was the major contributing cause of his worsened condition, the Board held that the claim was not compensable.

Claimant argues that the Board erred in applying the major contributing cause standard of ORS 656.005(7)(a)(B) to this claim for aggravation under ORS 656.273(1). He asserts that the aggravation statute has long been interpreted to require a claimant to show only that the compensable injury was a material contributing cause of the worsening of a compensable condition, and that standard was not changed by the 1990 amendments to the workers’ compensation law. Employer argues that the language of ORS 656.005(7)(a)(B), which was added by the 1990 amendments, applies by its terms to any claim for compensation involving a preexisting condition, including claims for additional compensation for the worsening of a preexisting compensable condition under ORS 656.273(1).

We have touched on this issue in Tektronix, Inc. v. Nazari, 117 Or App 409, 844 P2d 258 (1992), on recon 120 Or App 590, 853 P2d 315, rev den 318 Or 27 (1993), and Gray v. SAIF, 121 Or App 217, 854 P2d 1008 (1993). In Nazari, the issue was the compensability of the claimant’s initial low back injury claim. We said:

“It is not clear how the statute [ORS 656.005(7)(a)(B)] is to be applied in the context of an initial claim for compensation, when the injury combines with a preexisting condition to cause or prolong disability or a need for treatment.” 120 Or App at 594. (Emphasis supplied.)

We concluded that the legislature intended to “adopt the major contributing cause standard of proof with respect to any claim for benefits or disability related to a preexisting, noncompensable condition.” 120 Or App at 594. (Emphasis supplied.) However, we were then more precise in recognizing that the issue before us was initial claims:

“We conclude that the statute is applicable in the context of an initial injury claim if the injury combines with a preexisting, noncompensable condition to cause or prolong disability or a need for treatment. If, in an initial claim, there is disability or a need for treatment as a result of the injury alone, then the claim is compensable if the injury is a material contributing cause of the disability or need for treatment. If, in an initial claim, the disability or need for treatment is due to the combination of the injury and a preexisting, noncompensable condition, then the injury is compensable only if it is the major contributing cause of the disability or need for treatment.” 120 Or App at 594. (Emphasis supplied.)

We went on to say that,

“[i]n order to obtain further compensation for disability or a need for treatment that is the result of a combination of the injury and a preexisting, noncompensable condition, the claimant must show that the injury is the major contributing cause of the disability or need for treatment.” 120 Or App at 594.

To the extent that the quoted material could be read as saying that ORS 656.005(7)(a)(B) applies to aggravation claims, we reject that reading, because it would address an issue that was not presented in the case, i.e., the legal test for aggravation claims. By definition, an aggravation claim under ORS 656.273 is a claim for additional compensation for the worsening of an already accepted claim.

The overly broad language in Nazari regarding application of ORS 656.005(7)(a)(B) to any claim for compensation went beyond the specific issue before us in that case and touched on an issue that was not before us: the standard for proving aggravation. As the dissent says, the “difficult” issue in Nazari was whether and how ORS 656.005(7)(a)(B) applied to initial injury claims, 132 Or App at 179; however, it was also the only issue. We do not feel compelled to follow the broad dictum in Nazari that the major contributing cause standard applied to “any claim for benefits or disability related to a preexisting, noncompensable condition.”

In Gray v. SAIF, supra, we did say that ORS 656.005(7)(a)(B) applied to aggravation claims; however, we should be free to reconsider that bald and truncated assertion. Our entire discourse on the subject in that case reads:

“Even assuming, as claimant contends, that she has experienced an aggravation of her compensable claim, her condition is not compensable, because she has not satisfied the requirements of ORS 656.005(7)(a)(B). See Tektronix, Inc. v. Nazari, [supra].” 121 Or App at 219.

Making an assumption about what type of claim was being asserted in Gray, and then relying on dictum from Nazari, is hardly the kind of consideration and analysis that should preclude us from a thorough examination of the issue. If our dictum in Nazari was wrong, and our reliance on it in Gray misplaced, we ought to recognize that and set it right, rather than perpetuate the error. Because we conclude both that the dictum in Nazari was wrong and that our reliance on it in Gray misplaced, we reverse the Board’s order.

The question is whether the 1990 amendment to ORS 656.005(7), providing the major contributing cause standard for conditions resulting from the combination of a compensable condition and a preexisting condition, was intended to change the legal standard that applies to a claim for aggravation under ORS 656.273(1). In interpreting a statute, we are to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). We do that by looking first to the text and context ofthe statute. A claim for “aggravation,” i.e., additional compensation for the worsening of a compensable condition, arises under ORS 656.273(1). The language of that statute that is at issue in this case is:

“[A]n injured worker is entitled to additional compensation * * * for worsened conditions resulting from the original injury.”

The phrase “resulting from” in the aggravation statute has long been interpreted to require a claimant to prove only that the original compensable injury or occupational disease was a material contributing cause of the worsened condition. That interpretation becomes part of the statute as if it had been written into it at the time of enactment. Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992). The first and most compelling indication that the legislature did not intend ORS 656.005(7)(a)(B) to change the causation test in ORS 656.273(1) is that it did not change the critical language of ORS 656.273(1), requiring that a worsened condition be one “resulting from the original injury.” Because “resulting from” has always been held to mean material contributing cause, the legislature’s failure to change that language precludes a conclusion that the legislature intended a change in its meaning.

The dissent does not explain how a legislature’s failure to change statutory language can result in a change of the meaning of that language. Instead, it discerns a legislative intent to change the meaning of “resulting from” in ORS 656.273(1) by its 1990 enactment of ORS 656.005(7)(a)(B). We disagree. ORS 656.005(7)(a)(B) was added to the definition of “compensable injury” contained in ORS 656.005-(7)(a); it was not added to the aggravation statute, ORS 656.273. The definition statute does not refer to the aggravation statute, ORS 656.273(1), or vice versa. Nor does ORS 656.273(1) use the term “compensable injury.” Therefore, there is no indication in the text or the context of the two statutes that ORS 656.005(7)(a)(B) should apply to a claim for aggravation under ORS 656.273(1).

The few changes that the 1990 legislature did make to ORS 656.273(1) are consistent with the established meaning. ORS 656.273(1) was amended in 1990 to provide that, “if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable.” If the legislature had intended that a claimant with a preexisting condition has to meet the major contributing cause test to prove a claim for aggravation under ORS 656.273(1), it makes no sense that the legislature also would have amended ORS 656.273(1) to provide that a claim for a worsened condition is not compensable if an off-the-job injury is the major contributing cause. Because there can be only one major contributing cause, once a claimant proved that the original injury was the major contributing cause of the worsened condition, the off-the-job injury provision would be superfluous.¹ We are not at liberty to interpret the language in a way that makes part of it redundant.

The dissent also asserts that our reliance on the legislature’s failure to change the “resulting from” language is misplaced, saying it is “likely that the legislature made no additional changes to ORS 656.273, because it believed that the changes made to ORS 656.005(7) encompassed aggravation claims.” 132 Or App at 180. That argument ignores the fact that the 1990 legislature made some identical additions to both ORS 656.005(7)(a) and ORS 656.273(1), when it provided that a claimant must establish a claim “by medical evidence supported by objective findings.” If changes to ORS 656.005(7)(a) apply to aggravation claims, there was no reason to make that change in ORS 656.273(1) as well.

To the extent that the text and context are not definitive, the legislative history also supports a conclusion that there was no intent to change the legal standard for aggravation claims, except those involving off-the-job injuries. See PGE v. Bureau of Labor and Industries, supra, 317 Or at 611. Jerald Keene, in explaining the proposed changes in ORS 656.273 to the Joint Interim Special Committee on Workers’ Compensation, said:

“On aggravations the standard is unchanged. * * * Material contributing cause is still the standard for an aggravation claim, which is a natural worsening of a pre-existing compensable condition. When you injure a condition that’s permanently a problem, once it gets worse you can reopen your claim if the original injury remains a material contributing cause of the worsening. The things that this statute does change, though, is [sic] situations where that worsening, rather than being a natural progression of the original compensable injury, instead is caused by some supervening incident like falling off a roof or getting in a car accident.” Joint Interim Special Committee on Workers’ Compensation, May 3,1990, Tape 8, Side B. (Emphasis supplied.)

At the House Special Session, Representative Mannix explained:

“In regard to aggravations. The standard right now is whether or not there’s been some material contribution to worsened condition. The best example I can come up with is, you’ve got a low back strain and your back is still hurtingyou, on a weekend at home you go up on the roof and you are trying [to] reroof your own house, and you fall off. Those result[ant] medical services involving that low back strain are still considered compensable and you probably got an aggravation a worsening under the workers’ compensation] system. What we’re saying here is the worsening is going to have to [be] something which — where the industrial injury is a major contributing cause of the worsening.” House Special Session, May 7,1990, Tape 2, Side A.

There is nothing in the legislative history of ORS 656.273 that mentions the major contributing cause standard of ORS 656.005(7)(a)(B) or that suggests that the legislature intended ORS 656.005(7)(a)(B) to apply in the aggravation context.

Just as the legislative history of ORS 656.273 does not refer to ORS 656.005(7)(a)(B), the legislative history of ORS 656.005(7)(a)(B) does not mention aggravation claims or ORS 656.273(1). In light of the legislative history of both ORS 656.273(1) and ORS 656.005(7)(a)(B), and of the legislature’s failure to amend the “resulting from” language in ORS 656.273(1), and of the specific changes to that subsection that the legislature did make, we conclude that the legislature did not intend to affect the standard of proof for aggravation claims. Accordingly, we hold that a worsening of a compensable condition, not caused in major part by an off-the-job injury, is compensable under ORS 656.273(1) if the compensable injury is a material contributing cause of the worsening. That standard applies even if the claimant had a condition that preexisted the compensable injury.²

The consequence of the dissent’s reasoning is absurd. The language “resulting from the original injury,” in ORS 656.273(1), would have two different meanings, depending on whether or not the claimant has a condition that preceded the initial compensable injury. Under the dissent’s reading of the statutes, if the claimant does not have a condition that preceded the initial compensable injury, he or she could prove the compensability of the worsening of a compensable injury or disease by showing that the original injury or disease is the material contributing cause of the worsening. If, however, the claimant does have a preexisting condition, the claimant would have to prove that the compensable injury or disease is the major contributing cause of the worsening. Absent express language in the aggravation statute or some other specific legislative directive, we know of no authority for attributing two different meanings to the same statutory language.

Because the legislature never intended to change the standard for proving an aggravation claim under ORS 656.273(1) when it enacted ORS 656.005(7)(a)(B) in 1990, we hold that the Board erred in applying the major contributing cause standard to claimant’s claim.

We reject without discussion claimant’s second assignment of error.

Reversed and remanded for reconsideration.

1 The dissent fails satisfactorily to address that problem, saying only that, once a claimant shows that the compensable injury is the major contributing cause of the worsening, “the employer would be able to show that the subsequent injury is its major contributing cause,” citing Fernandez v. M & M Reforestation, 124 Or App 38, 860 P2d 898 (1993). 132 Or App at 180. Of course, because there can be only one major contributing cause, once the claimant meets the major contributing cause test, the employer cannot defeat the claim. Fernandez is both logical and correct under our reading of ORS 656.273(1). It is not logical under the dissent’s reading. That is another indication that the legislature did not intend the meaning the dissent ascribes to ORS 656.273(1).

2 This result is consistent with our holding in Beck v. James River Corp., 124 Or App 484, 863 P2d 526 (1993), rev den 318 Or 478 (1994), in which we held that ORS 656.005(7)(a)(B) does not apply to claims for continued medical services for “conditions resulting from the injury” under ORS 656.245(1). (Emphasis supplied.) The standard remains material contributing cause. Similarly here, we hold that ORS 656.005(7)(a)(B) does not apply to a claim for additional compensation for “worsened conditions resulting from the original injury” under ORS 656.273(1). (Emphasis supplied.) Although ORS 656.245 and ORS 656.273 both contain the same language, the dissent fails to explain why the major contributing cause standard of ORS 656.005(7)(a)(B) does not apply to continuing medical treatment, but does apply to aggravation claims. There is no way to justify giving a different meaning to “resulting from” as used in ORS 656.273(1) than we gave its use in ORS 656.245(1).

This result is also consistent with SAIF v. Drews, 318 Or 1, 860 P2d 254 (1993), in which the Supreme Court held that the preexisting condition provision of ORS 656.005(7)(a)(B) does apply to a determination of whether there is a new injury in the shifting responsibility context of ORS 656.308(1). A new injury claim can arise when work causes a worsening of a preexisting condition. However, a claim under ORS 656.273(1) for the worsening of an accepted compensable condition is not a claim for a new injury.