Luckhurst v. Bank of America

1 P.3d 1031, 167 Or. App. 11, 2000 Ore. App. LEXIS 721
CourtCourt of Appeals of Oregon
DecidedMay 3, 2000
DocketWCB No. 97-03907; CA A102856
StatusPublished
Cited by6 cases

This text of 1 P.3d 1031 (Luckhurst v. Bank of America) 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
Luckhurst v. Bank of America, 1 P.3d 1031, 167 Or. App. 11, 2000 Ore. App. LEXIS 721 (Or. Ct. App. 2000).

Opinion

DEITS, C. J.

Claimant seeks review of a Workers’ Compensation Board (Board) order that upheld employer’s denial and held that claimant’s current left knee condition was not compen-sable. Claimant contends that the Board erred in concluding that he suffered from a combined condition and in applying the legal standard of ORS 656.005(7)(a)(B), rather than that of ORS 656.225(1). We review for errors of law and substantial evidence and affirm.

We derive the facts from the ALJ’s findings, the Board’s summary of those findings — which it adopted — and from the medical evidence in the record. Claimant was injured on December 4, 1996, while he was working as a courier for employer. Claimant was moving a 32-gallon trash can containing approximately 75 to 80 pounds of paper. The can was on a wheeled platform, and when claimant attempted to lift the can onto a curb, the wheels came off. Claimant tripped, fell forward, and landed on his left knee on the flat edge of the concrete curb. Claimant sought and received medical treatment, and his claim was accepted as a “left knee contusion.”

Claimant’s left knee significantly improved until February 1, 1997, when he felt severe pain as he bent forward and “touched” his knee to the ground. An MRI revealed an osteochondral fragment “consistent with osteochondritis dissecans.” Employer issued a denial, asserting that claimant’s current condition, need for treatment, and disability were not compensable. Ultimately, claimant twice had arthroscopic surgery in an attempt to remove the fragment or fragments. Following the second surgery, claimant has done well.

Claimant’s treating surgeon, Dr. McLean, explained that osteochondritis dissecans, or OD, is a condition of “the articular surface of a bone involving the joint, wherein, for reasons not well understood, the vascular supply to that region of bone becomes interrupted and the bone essentially dies.” As a “secondary result of the destruction of the bone,” the articular cartilage also loses strength. The ALJ found, [14]*14and all the medical evidence indicates, that claimant’s osteo-chondritis dissecans was a preexisting condition.1 According to McLean, claimant’s OD increased the risk that cartilage or bone fragments would break off, but a “forceful activity,” such as the fall onto claimant’s left knee, would be required to cause the formation of a loose body in the knee. McLean testified, and the ALJ found, that claimant’s fall caused a cartilaginous fragment or fragments to break loose in his knee. McLean also testified that, as a result of claimant’s fall, his OD worsened from grade one to grade three.

The ALJ found that the knee contusion “combined with [his preexisting] OD lesion resulting in a loose body in claimant’s left knee,” which caused a worsening of the preexisting OD. The ALJ concluded that the claim was not compensable as a “combined condition” under ORS 656.005(7)(a)(B), but that it was compensable under ORS 656.225(1) because claimant’s injury was, in the words of the statute, “the major contributing cause of a pathological worsening of the preexisting condition,” here claimant’s OD.

On review, the Board reversed. The Board agreed with the ALJ’s finding that the knee contusion combined with claimant’s preexisting condition to cause the need for treatment: It concluded that “the record shows that claimant’s treatment was directed to a ‘combined condition’ within the meaning of ORS 656.005(7)(a)(B).” It also agreed with the ALJ’s conclusion that claimant had not proved the compens-ability of his current condition as a “combined condition” under the terms of ORS 656.005(7)(a)(B). The Board also noted that claimant did not challenge the ALJ’s determination that he did not prove that his injury was the major contributing cause of the need for treatment of the combined condition under ORS 656.005(7)(a)(B). The Board, however, disagreed with the ALJ’s conclusion that claimant had established compensability under ORS 656.225(1). The Board concluded that this statute was not applicable because claimant’s treatment was not directed “solely” to his preexisting condition, as the terms of that statute require.

[15]*15On review, claimant assigns error to the Board’s decision to uphold employer’s denial. He contends that the Board erred in finding that his treatment was for a combined condition and in its consequent conclusion that the pertinent statute was ORS 656.005(7)(a)(B), rather than ORS 656.225(1).

ORS 656.005(7)(a)(B) provides that a “compensable injury” is one that “aris[es] out of and in the course of employment requiring medical services or resulting in disability or death,” if the claim is “established by medical evidence supported by objective findings, subject to the following limitation[ ]:”

“(B) If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable 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.” (Emphasis added.)
ORS 656.225 provides, in part, that:
“In accepted injury or occupational disease claims, disability solely caused by or medical services solely directed to a worker’s preexisting condition are not compensable unless:
“(1) In occupational disease or injury claims other than those involving a preexisting mental disorder, work conditions or events constitute the major contributing cause of a pathological worsening of the preexisting condition.” (Emphasis added.)

As noted here, the Board found that claimant had a “combined condition” within the meaning of ORS 656.005(7)(a)(B) but that the condition was not compensable because claimant had not satisfied the major contributing cause test. As discussed above, claimant does not dispute the latter conclusion, but he argues that he does not have a “combined condition” within the meaning of the statute and, therefore, it simply does not apply.

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Cite This Page — Counsel Stack

Bluebook (online)
1 P.3d 1031, 167 Or. App. 11, 2000 Ore. App. LEXIS 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/luckhurst-v-bank-of-america-orctapp-2000.