SAIF Corp. v. Valencia

939 P.2d 623, 148 Or. App. 263, 1997 Ore. App. LEXIS 648

• Court: Court of Appeals of Oregon
• Decided: May 28, 1997
• Docket: 95-08087; CA A92897
• Status: Published

Opinions

LEESON, J.

SAIF seeks review of a Workers’ Compensation Board order holding that claimant’s right shoulder condition is a compensable consequential condition of a previously accepted left shoulder claim. We review for substantial evidence, ORS 183.482(8)(c), and affirm.

At the hearing, the issue was whether claimant’s compensable left shoulder injury in 1994 was the major contributing cause of his right shoulder overuse syndrome. The only medical evidence was provided by Dr. Rand, claimant’s treating physician, who expressed his opinion regarding causation in response to questions posed by claimant’s attorney. Rand’s opinion is reproduced below:

To: William Rand, MD From: Max Rae. ML. 363-5424, Fax: 363-5460 Re: Roaendo Valencia \ A simple, hand written response on this sheet and faxed back to me would be sufficient. The. . hearing is at 9:00 tomorrow morning. Aty fax machina in left on at all tirpes Is it more probable than pdftha^ Rosendo'c favoring of his left shoulder is the major contributing •pause of his'rioht shoufjer pjpoiem? Is it otherwise more probable than not that the right shouideTpfoBISrrrwartSUsbd in major part by the work at Young and Morgan or the left shoulder, injury? Thank you for your help.

Based on Rand’s opinion, the administrative law judge (ALJ) concluded that claimant had established a compensable claim and the Board affirmed.

SAIF contends that substantial evidence does not support the AU’s finding, adopted by the Board, that Rand offered an opinion that claimant’s accepted left shoulder injury was the major contributing cause of claimant’s right shoulder condition. According to SAIF,

“[t]he document does not contain a response to the question posed by claimant’s attorney. The markings on the document by some unidentified individual consist of underlining and circling various words. The document does not indicate agreement or disagreement with the proposition of com-pensability suggested by claimant’s attorney in the question posed. A reasonable person could not conclude from the document itself, or from the record as a whole, that a medical opinion sufficiently supporting compensability exists.”

Claimant responds that the ALJ’s interpretation of Rand’s response to the inquiry made by claimant’s attorney is reasonable.

As a threshold matter, we note that SAIF made no authentication objection to Rand’s opinion being admitted into evidence at the hearing, and it declined the opportunity to depose or cross-examine Rand. Consequently, the only issue is whether substantial evidence supports the finding of the ALJ and the Board that claimant’s right shoulder condition developed as a consequence of his left shoulder injury.

On review of an order of the Board, we are not to substitute our judgment for that of the Board as to any issue of fact or to set aside any finding that is supported by substantial evidence. Garcia v. Boise Cascade Corp., 309 Or 292,295, 787 P2d 884 (1990); Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988).

Claimant’s attorney posed two questions to Rand. The first asked whether it was more probable than not that claimant’s favoring of his left shoulder was the major contributing cause of his right shoulder problem. The second asked whether it was more probable than not that claimant’s right shoulder problem was caused in major part by his work for employer or by the left shoulder injury. The ALJ and the Board concluded that Rand’s underlining and circling of words indicated his agreement with the first question posed by claimant’s attorney. The ALJ characterized Rand’s medical opinion as “sparse.” Nonetheless, on this record, which consists of Rand’s opinion and claimant’s testimony, we conclude that substantial evidence supports the finding that claimant’s favoring of his injured left shoulder was the major cause of the development of his right shoulder condition.

Affirmed.