Keystone RV Co.-Thor Industries, Inc. v. Erickson

373 P.3d 1122, 277 Or. App. 631, 2016 WL 1583859, 2016 Ore. App. LEXIS 442
Court of Appeals of Oregon·Decided April 20, 2016·No. 1205867; A157092·Published·Cited by 2 cases

Opinion

DEVORE, J.

Employer seeks review of an order of the Workers’ Compensation Board determining that claimant has a compensable “combined condition,” as defined in ORS 656.005(7)(a)(B). Employer contends that the board erred in its interpretation of the medical evidence that employer offered to meet its burden under ORS 656.266(2) to show that claimant’s combined condition is not compensable. We review the board’s order for substantial evidence and for errors of law, ORS 183.482(8)(a), (c), and to determine whether the board’s analysis comports with substantial reason. SAIF v. Ramos, 252 Or App 361, 363, 287 P3d 1220 (2012). We agree with employer that the board erroneously interpreted one of two medical opinions on which employer relied. Because that medical opinion, as correctly interpreted, could meet employer’s burden of proof as described in ORS 656.266(2), we conclude that the board’s order is not supported by substantial reason. We therefore reverse and remand the board’s order for reconsideration.

Claimant injured his lower back at work and filed a workers’ compensation claim that employer accepted as a lumbar strain. Claimant’s physicians subsequently determined that claimant has spondylolisthesis (a misalignment of the vertebrae) at the L5-S1 level, which had been previously diagnosed and which constitutes a “preexisting condition” under ORS 656.005(24).1 There is medical evidence in the record that claimant’s compensable work injury contributed to the spondylolisthesis becoming symptomatic. But that medical opinion also concludes that claimant’s lumbar strain has resolved and that claimant’s continued symptoms relate only to the spondylolisthesis.

Claimant had surgery to address the spondylolis-thesis. Claimant’s attorney asked employer to amend its [633] acceptance to include a combined condition of “lumbar strain combined with L5-S1 spondylolisthesis.” Employer denied the compensability of the combined condition, and claimant requested a hearing.

As a general rule, an injury is compensable under ORS 656.005(7) if it arises out of and in the course of the employment and if the work is a material contributing cause of the injury. Coleman v. SAIF, 203 Or App 442, 446, 125 P3d 845 (2005). When, however, an injury “combines” with a preexisting condition, the “combined condition” is compen-sable “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.” ORS 656.005(7)(a)(B).2

Ordinarily, it is the claimant’s burden to prove the compensability of a claim. ORS 656.266(1) (“The burden of proving that an injury * * * is compensable * * * is upon the worker.”). When, however, as here, it is asserted (by either the employer or the claimant) that the disability or need for treatment arises from a combined condition, ORS 656.266(2) provides an exception:

“[F]or the purpose of combined condition injury claims under ORS 656.005(7)(a)(B) only:
“(a) Once the worker establishes an otherwise com-pensable injury, the employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, 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.”

To reiterate, when a claimant initiates a claim for a combined condition, the claimant bears the initial burden to establish that an “otherwise compensable condition” has [634] combined with a preexisting condition “to cause or prolong disability or a need for treatment.” ORS 656.005(7)(a)(B).3 If the claimant meets that burden, and the employer disputes the compensability of the combined condition, it is the employer’s burden under ORS 656.266(2) to establish that the “otherwise compensable injury” is not the major contributing cause of the claimant’s disability or need for treatment of the combined condition. Washington County v. Jansen, 248 Or App 335, 344, 273 P3d 278 (2012) (holding that, by enacting ORS 656.266(2), the legislature shifted to employers the burden to prove that a claimant’s “otherwise compensable injury” is not, or is no longer the major contributing cause of the claimant’s combined condition).

On claimant’s request for hearing, an administrative law judge upheld employer’s denial of claimant’s combined condition claim, determining that, although claimant had established the existence of a combined condition caused in material part by the compensable lumbar strain, ORS 656.005(7)(a), the combined condition was not compensable, because employer had established that the “otherwise compensable” lumbar strain was not the major contributing cause of the disability or need for treatment of the combined condition.

On claimant’s appeal, the board reversed, concluding that the medical evidence on which employer relied was not legally sufficient to meet employer’s burden of proof under ORS 656.266(2)(a), because the evidence only addressed the cause of the spondylolisthesis and did not address the cause of the combined condition. On judicial review, employer contends that the board erred in its interpretation of the medical evidence, which employer contends is legally sufficient to meet its burden to show that claimant’s lumbar strain is not the major contributing cause of the disability or need for treatment of the combined condition.

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Keystone RV Co.-Thor Industries, Inc. v. Erickson, 373 P.3d 1122, 277 Or. App. 631, 2016 WL 1583859, 2016 Ore. App. LEXIS 442 (Or. Ct. App. 2016).

373 P.3d 1122 (Keystone RV Co.-Thor Industries, Inc. v. Erickson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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