Saif Corp. v. Dunn (In re Comp. of Dunn)

439 P.3d 1011, 297 Or. App. 206
Court of Appeals of Oregon·Decided April 24, 2019·No. A164104·Published·Cited by 3 cases

Opinion

ARMSTRONG, P. J.

*207In this petition for judicial review, we are asked to address whether the Workers' Compensation Board erred in determining that claimant's congenital bone condition in his foot known as "unfused apophysis" was not a "preexisting condition," within the meaning of ORS 656.005(24), to be considered in determining the cause of claimant's inflammatory condition known as "apophysitis." Reviewing the board's order for substantial evidence and legal error, ORS 656.298 ; ORS 183.482(7), (8), we conclude that the board did err, and we therefore reverse and remand the board's order for reconsideration.

Initially, we set out some relevant legal context. This case presents an issue of statutory construction relating to preexisting conditions in occupational disease claims. ORS 656.802 defines "occupational disease" and *1012also states that preexisting conditions are "deemed causes in determining major contributing cause":

"(1)(a) As used in this chapter, 'occupational disease' means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death[.]
"* * * * *
"(2)(a) The worker must prove that employment conditions were the major contributing cause of the disease.
"* * * * *
"(e) Preexisting conditions shall be deemed causes in determining major contributing cause under this section."

ORS 656.005(24), in turn, defines "preexisting condition" for both injury and occupational disease claims:

"(24)(a) 'Preexisting condition' means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:
*208"(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis; and
"(B)(i) In claims for an initial injury or omitted condition, the diagnosis or treatment precedes the initial injury;
"(ii) In claims for a new medical condition, the diagnosis or treatment precedes the onset of the new medical condition; or
"(iii) In claims for a worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment precedes the onset of the worsened condition.
"(b) 'Preexisting condition' means, for all occupational disease claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment and that precedes the onset of the claimed occupational disease, or precedes a claim for worsening in such claims pursuant to ORS 656.273 or 656.278.
"(c) For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury."

(Emphasis added.) As relevant here, in the occupational disease context, a preexisting condition is one that "contributes to disability or need for treatment." We note that paragraph (24)(c), which states that a condition does not "contribute" if it "merely renders the worker more susceptible to the injury," applies only "[f]or the purposes of industrial injury claims."

The seminal case relating to proof of an occupational disease is Dethlefs v. Hyster Co. , 295 Or. 298, 310, 667 P.2d 487 (1983), in which the court held that a disease is compensable if work activities are the major contributing cause of the disease or its worsening. In Liberty Northwest Ins. Corp. v. Spurgeon , 109 Or. App. 566, 569, 820 P.2d 851 (1991), rev. den. , 313 Or. 210, 830 P.2d 596 (1992), we first drew a distinction between a preexisting condition that contributes to the cause of the disease, and a preexisting condition that is merely a predisposition or that merely renders the work *209more susceptible but does not contribute to the cause. We held that "[a]ll causes of a disease, as opposed merely to a susceptibility or predisposition, must be considered in determining which, if any, was the major contributing cause." Id. We explained:

"An employer is responsible for a disease that a claimant who has a particular susceptibility or predisposition develops due in major part to conditions at work. The predisposition to disease is not a bar to compensability, if work causes the disease. In that sense, the employer takes the employee as it finds her."

Id.

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Saif Corp. v. Dunn (In re Comp. of Dunn), 439 P.3d 1011, 297 Or. App. 206 (Or. Ct. App. 2019).

439 P.3d 1011 (Saif Corp. v. Dunn (In re Comp. of Dunn)) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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