Staffing Services, Inc. v. Kalaveras

249 P.3d 550, 241 Or. App. 130
CourtCourt of Appeals of Oregon
DecidedFebruary 23, 2011
Docket0502936 A142115
StatusPublished

This text of 249 P.3d 550 (Staffing Services, Inc. v. Kalaveras) 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
Staffing Services, Inc. v. Kalaveras, 249 P.3d 550, 241 Or. App. 130 (Or. Ct. App. 2011).

Opinion

249 P.3d 550 (2011)
241 Or. App. 130

In the Matter of the Compensation of Danny Kalaveras, Claimant.
STAFFING SERVICES, INC., Petitioner,
v.
Danny KALAVERAS, Respondent.

0502936; A142115.

Court of Appeals of Oregon.

Argued and Submitted September 7, 2010.
Decided February 23, 2011.

Benjamin C. Debney argued the cause and filed the briefs for petitioner.

Shawn M. Dickey, Portland, argued the cause for respondent. On the brief was Juliana E. Coons.

Before ORTEGA, Presiding Judge, and SERCOMBE, Judge, and LANDAU, Judge Pro Tempore.

ORTEGA, P.J.

Employer seeks review of an order of the Workers' Compensation Board holding that claimant's disabling back condition is compensable. Employer contends that the board erred in rejecting medical opinions stating that claimant had preexisting arthritis and, further, that the board's finding that claimant's condition is compensable is not supported by substantial evidence. We conclude *551 that the board did not err and, accordingly, affirm.

Claimant injured his back while working for employer moving pallets and stacking boxes of ice cream. After claimant developed symptoms in his low back and left leg, Dr. Morely diagnosed a lumbar strain and released claimant to modified work. An MRI revealed that claimant had disc desiccation and a left paracentral and lateral disc herniation at L5-S1, and claimant saw Dr. Malos for a neurosurgical consultation. Malos diagnosed left sciatica in S1 distribution and sought authorization to perform a left L5-S1 microdiscectomy. Malos opined that, by history, the condition appeared to be work-related.

Employer accepted a claim for lumbar strain. Drs. Williams and Lavcoe performed an independent medical examination (IME) at employer's request, and their diagnosis included

"pre-existing disc desiccation at L5-S1, lumbar strain as a result of work activities * * * followed within two days with lumbar back pain and left lower extremity pain in a left S1 distribution, compatible with a herniated disc at L5-S1 on the left, supported by a lumber MRI, which documents a herniated disc on the left at L5-S1."

Williams and Lavcoe opined that claimant's work activities were, by history, the direct cause of his back injury and herniated disc, and that the work injury was a material contributing cause of the herniated disc. However, they also opined that the preexisting disc desiccation at L5-S1 was the major contributing cause of the L5-S1 herniated disc. They said that the preexisting degenerative disc desiccation was a degenerative arthritic condition with natural aging, which was present at the time of the injury and combined with the work injury to prolong the need for treatment. The IME doctors opined that the preexisting degenerative desiccation at L5-S1 was the major contributing cause of the combined condition, with the work exposure being a material contributing cause. Claimant's former treating physician concurred in the IME report and separately offered the same opinion based on his evaluation.

Based on the reports, employer issued an amended notice accepting "lumbar strain combined with pre-existing disc desiccation at L5-S1 resulting in a combined condition involving the L5-S1 disc herniation and the combination occurred on the date of injury." On the same day, employer also denied the combined condition on the ground that the major contributing cause of the combined condition and need for treatment was the preexisting disc desiccation.

Claimant requested a hearing, contending that his L5-S1 disc herniation is compensable as a new and/or omitted condition. Claimant contended that his burden of proof was "material cause," rather than major contributing cause, because he does not have a legally cognizable arthritic condition at L5-S1 or a combined condition. Claimant maintained that employer should not have issued an acceptance for, and then denied, a combined condition and that a combined condition analysis is not appropriate. Employer responded that the medical evidence supports a finding that claimant has a preexisting arthritic degenerative disc condition at L5-S1 that combined with the work injury, with the preexisting condition being the major contributing cause of claimant's current disability and need for treatment.

In establishing the compensability of his L5-S1 disc herniation, claimant has the burden to prove, by a preponderance of the evidence, that his work injury was a material contributing cause of his disability or need for treatment. ORS 656.005(7)(a); ORS 656.266(1). A "material contributing cause" is a fact of consequence regarding the claimant's condition. Mize v. Comcast Corp-AT & T Broadband, 208 Or.App. 563, 569, 145 P.3d 315 (2006). In the context of his claim for a new or omitted condition for the L5-S1 disc herniation, claimant had the burden to establish that the claimed new or omitted condition is "otherwise compensable," i.e., that the 2005 work injury was a material cause of the disability or need for treatment. If claimant meets that burden, but the medical evidence establishes that the "otherwise compensable injury" combined at any time with a "preexisting condition" to cause or prolong disability or a need for treatment, the standard *552 for compensability becomes "major contributing cause." Employer then has the burden of proving that the "otherwise compensable injury" was not the major contributing cause of claimant's disability or need for treatment of the combined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a).

There is no dispute in this case that claimant proved an "otherwise compensable injury." The ALJ found that a preponderance of the medical evidence established that the work injury was a material contributing cause of claimant's disability and need for treatment. The ALJ also determined that claimant suffered from a preexisting degenerative condition and that employer had properly accepted a combined condition. The question in dispute at the hearing was whether claimant's preexisting degenerative condition was "arthritis or an arthritis condition," so as to constitute a "preexisting condition" within the meaning of ORS 656.005(24)(a),[1] thereby requiring the higher, major contributing cause, standard of proof to establish compensability.

In Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or.App. 674, 682-83, 146 P.3d 336 (2006), rev. den., 342 Or. 473, 155 P.3d 51 (2007), we said that a condition is "arthritis" if the medical evidence shows that the condition involves "inflammation of one or more joints." The ALJ in this matter found that claimant's preexisting condition involved a joint, and that finding is not disputed on review. The ALJ also found that claimant's condition was arthritic.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hopkins v. SAIF Corp.
245 P.3d 90 (Oregon Supreme Court, 2010)
Staffing Services, Inc. v. Kalaveras
249 P.3d 550 (Court of Appeals of Oregon, 2011)
Karjalainen v. Curtis Johnston & Pennywise, Inc.
146 P.3d 336 (Court of Appeals of Oregon, 2006)
Mize v. Comcast Corp-AT & T Broadband
145 P.3d 315 (Court of Appeals of Oregon, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
249 P.3d 550, 241 Or. App. 130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/staffing-services-inc-v-kalaveras-orctapp-2011.