SAIF Corp. v. Dunn (In re Dunn)

427 P.3d 215, 293 Or. App. 242
CourtCourt of Appeals of Oregon
DecidedAugust 8, 2018
DocketA163952
StatusPublished

This text of 427 P.3d 215 (SAIF Corp. v. Dunn (In re Dunn)) 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
SAIF Corp. v. Dunn (In re Dunn), 427 P.3d 215, 293 Or. App. 242 (Or. Ct. App. 2018).

Opinion

EGAN, C. J.

*243In this workers' compensation case, SAIF, as the insurer for claimant's current employer, ES&A, seeks review of an order of the Workers' Compensation Board assigning it responsibility for claimant's occupational disease claim and asserts that claimant's former employer, Ray-O-Lite, also SAIF's insured, is responsible. We conclude that the board did not err and therefore affirm.

Claimant has had several back injuries, the first one occurring in 2004, when claimant was working as a sign installer for SAIF's insured Ray-O-Lite. Claimant felt sudden pain while lifting a 350-pound compressor. SAIF, on behalf of Ray-O-Lite, accepted a claim for a strain and an L4-5 disc herniation, and claimant had surgery in 2005 to repair the disc herniation.

Claimant's job as a sign installer involves heavy labor. After his surgery, claimant had occupational therapy, with the goal of training him for a lighter job, but claimant did not complete the training. SAIF closed the claim in 2008 with an award of permanent partial disability, and, in 2009, claimant returned to work as a sign installer for SAIF's insured ES&A.

Claimant experienced two injuries while working for ES&A. In 2013, while using a jackhammer to break up concrete, claimant developed persistent intense pain that has not gone away. He did not immediately seek medical attention for that injury, however. In 2014, claimant developed disabling back pain after pulling a sign face out of a sign. He went to the emergency room following that incident. An MRI taken at that time was reported to show conditions similar to those shown on an MRI taken in 2006, after claimant's 2005 surgery. Based on the 2014 MRI, Dr. Keiper, who had performed claimant's first surgery, recommended another surgery to repair what he believed was a disc herniation and spinal stenosis. Claimant filed injury claims with SAIF as insurer for ES&A for the 2013 and 2014 injuries. SAIF denied the claims, and claimant requested a hearing.

Claimant also filed a claim with SAIF as insurer for Ray-O-Lite, seeking a reopening of the 2004 claim to be *244compensated for the surgery and asserting that the accepted 2004 disc herniation was a material contributing cause of his need for treatment.

On behalf of SAIF, Drs. Hammel and Ackerman opined that claimant's condition was arthritic and had developed independently of the 2013 and 2014 injuries. Dr. Rosenbaum, a neurosurgeon, examined claimant at SAIF's request and opined that the 2014 MRI report did not describe a disc herniation. He opined that claimant's condition at that time was not related to work and did not bear any relationship to the 2004 injury; rather, it was due *217to preexisting lumbar spondylosis and prominent functional overlay.

In September 2014, SAIF, as insurer for Ray-O-Lite, denied claimant's claim for surgical treatment. In January 2015, an administrative law judge (ALJ) upheld SAIF's denial of a reopening of the claim against Ray-O-Lite, concluding that claimant's need for treatment was not materially related to the 2004 injury; rather, degenerative changes were the major contributing cause of claimant's need for treatment.

In March 2015, claimant developed radiculopathy. In May 2015, claimant had an MRI revealing an increase in disc material at L4-5 compared with the 2014 MRI. Claimant filed a claim with SAIF as insurer for ES&A, for an occupational disease for "three successive injuries in 2004, 2013, and 2014 along with the physical demands of my work." SAIF denied that claimant's work was the major contributing cause of his disease and also denied responsibility for the claim. Claimant's request for hearing was consolidated with his requests for hearing on SAIF's denials of the two injury claims on behalf of ES&A.

At the hearing, claimant withdrew the two injury claims against ES&A and pursued only the occupational disease claim. As an initial matter, the board rejected SAIF's contention that the January 2015 order upholding SAIF's denial of the claim for medical services against Ray-O-Lite precluded consideration of claimant's 2004 injury in determining the compensability of the occupational disease. The board explained that there was no contradiction between *245the finding in the ALJ's January 2015 order that claimant's 2004 injury was not a material contributing cause of claimant's need for treatment in 2014 and the board's subsequent consideration of the 2004 injury, along with the 2013 and 2014 injuries and claimant's heavy work, in determining whether claimant had an occupational disease. The board was correct. See Kepford v. Weyerhaeuser Co. , 77 Or. App. 363, 366, 713 P.2d 625, rev. den. , 300 Or. 722, 717 P.2d 630 (1986) (prior work injuries may be considered as part of the overall employment conditions for purposes of an occupational disease claim).

The board determined that the claim was compensable as an occupational disease under ORS 656.802(2)(a).1 Relying on the opinion of Dr. Sherman, a neurosurgeon, the board found that claimant's heavy work activities, together with his three injuries, are the major contributing cause of his current disc herniation. SAIF does not challenge that determination on judicial review.

The board also determined that the occupational disease was the responsibility of claimant's current employer, ES&A. The board rejected SAIF's contention that the assignment of responsibility was governed by ORS 656.308(1) and that responsibility remained with Ray-O-Lite.

ORS 656.308(1) provides:

"When a worker sustains a compensable injury, the responsible employer shall remain responsible for future compensable medical services and disability relating to the compensable condition unless the worker sustains a new compensable injury involving the same condition. If a new compensable injury occurs, all further compensable *246medical services and disability involving the same condition shall be processed as a new injury claim by the subsequent employer. The standards for determining the compensability of a combined condition under ORS 656.005(7) shall also be used to determine the occurrence of a new compensable injury or disease under this section."

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Cite This Page — Counsel Stack

Bluebook (online)
427 P.3d 215, 293 Or. App. 242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-dunn-in-re-dunn-orctapp-2018.