Vantassel v. SAIF Corp.

392 P.3d 362, 284 Or. App. 335
CourtCourt of Appeals of Oregon
DecidedMarch 15, 2017
Docket1301453; A156798
StatusPublished

This text of 392 P.3d 362 (Vantassel v. SAIF Corp.) 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
Vantassel v. SAIF Corp., 392 P.3d 362, 284 Or. App. 335 (Or. Ct. App. 2017).

Opinion

SERCOMBE, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board upholding SAIF’s denial of an injury claim for a disc herniation at L5-S1 that occurred when claimant stepped out of a truck at work. Claimant contends that the board erred in determining that the claim was not compensable because claimant’s two previous disc hernia-tions and surgeries at L5-S1 were preexisting conditions that combined with the work incident and that were the major contributing cause of claimant’s need for treatment. In reviewing the board’s order for substantial evidence and errors of law, ORS 183.482(8)(a), (c), we conclude that the board did not err, and affirm.

The facts are largely undisputed. Claimant has had two previous noncompensable surgeries for a disc herniation at L5-S1, in 2002 and 2009. At work, in December 2012, as claimant was getting out of a truck, he felt immediate intense pain down both legs. Doctors diagnosed a recurrent L5-S1 disc herniation with lumbar radiculopathy.

At SAIF’s request, claimant was examined by Dr. Vessely, an orthopedic surgeon. Vessely diagnosed “[Recurrent disc herniation at L5-S1” and “[s]tatus post lumber laminectomy and discectomy x2 at L5-S1, right side[.]” Vessely was of the opinion that claimant’s injury combined with preexisting conditions in claimant’s back, including two prior disc herniations at L5-S1 and two prior surgeries. In response to the question whether the diagnosed conditions were “consistent with the described mechanism of injury,” Vessely explained that, although stepping out of the truck was the precipitating cause of claimant’s most recent disc herniation, claimant’s previous disc herniations and surgeries were the major contributing cause:

“I do not feel that the on-the-job mechanism of getting out of a truck where he was just stepping down and nothing unusual happened other than severe pain, would be the major contributing cause. It appears that this is the time that he had the disc displacement occurring and he did not have any symptoms in his back or any incident prior to this. * * * Therefore, it is the fact that he has had two prior lami-nectomies and discectomies at L5-S1, and a minimal cause [337]*337of the episode at work[.] *** It is my opinion that the preexisting is by far the more major contributing cause.”

Vessely expressed the opinion that claimant’s “preexisting conditions, including the surgery, did combine with [an] event at work and that the preexisting conditions are the major contributory cause for his present need for treatment or disability.” Based on Vessely’s opinion, SAIF denied the claim.

Claimant requested a hearing. The record before the administrative law judge (ALJ) included a medical report from Dr. Sherman, who had performed surgery on claimant’s back. Sherman opined that, based on claimant’s description of his symptoms, the incident at work, imposed on claimant’s weakened disc, was the cause of the need for surgery. Dr. Thompson, claimant’s primary care physician, agreed with Sherman.

The ALJ found that claimant had established a work injury and that the incident of getting out of the truck was a “material contributing cause” of the recurrent L5-S1 disc herniation. Relying on Vessely’s opinion, the ALJ further found that claimant’s claim was for a “combined condition,” in which claimant’s preexisting conditions had combined with the work incident to cause the disability and need for treatment. Based on Vessely’s opinion, the ALJ found that the preexisting conditions were the major contributing cause of claimant’s disability and need for treatment of the combined condition. The ALJ concluded that SAIF had met its burden to show that the preexisting condition of claimant’s back was the major contributing cause of claimant’s disability and need for treatment of his combined condition, and therefore upheld SAIF’s denial. ORS 656.005(7)(a)(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 com-pensable 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.”); ORS 656.266(2)(a) (placing on the employer the burden to establish that “the otherwise compensable injury is not, or [338]*338is no longer, the major contributing cause” of the claimant’s disability or need for treatment).

The board affirmed the ALJ’s order, also finding persuasive Vessely’s “more cogent and thorough analysis” that “claimant’s preexisting back conditions (consisting of the previous recurrent disc herniations and resulting surgeries) had combined with the work incident” and were the major contributing cause of claimant’s disability and need for treatment. Thus, the board held, SAIF had met its burden to prove that claimant’s “otherwise compensable injury was not the major contributing cause of his disability/need for treatment for the combined L5-S1 disc herniation.”

Claimant seeks judicial review of the board’s order, contending that the board erred in characterizing his prein-jury back condition as a preexisting condition and in determining that he had a combined condition. For injury claims, ORS 656.005(24)(a) defines a preexisting condition as “any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment!.]” ORS 656.005(24)(c) excludes from the definition of a preexisting condition a condition that “merely renders the worker more susceptible to the injury.” In claimant’s view, the medical evidence on which the board relied shows that claimant’s past injuries and surgeries resulted in a mere “susceptibility” in the form of a weakened disc. For support, claimant refers to a statement written by SAIF’s attorney, with which Vessely concurred, that

“the preexisting conditions and treatment caused his disc annulus to be so weak, that it took only a minor event to herniate his disc. Weighing the significant preexisting treatment and conditions against his minor incident at work, you feel, based on a reasonable degree of medical probability, the preexisting conditions and treatment resulted in a severely weakened annulus and this was the major contributing cause of his condition and need for treatment of the combined condition.”

Claimant contends that Vessely’s concurrence with that statement expresses Vessely’s view that the mechanism of injury was the work incident superimposed on a weakened disc. That weakness, claimant contends, was a susceptibility [339]*339under ORS 656.005(24)(c) that, under the statute and this court’s case law construing it, could not be considered in evaluating the compensability of the claim.

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Cite This Page — Counsel Stack

Bluebook (online)
392 P.3d 362, 284 Or. App. 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vantassel-v-saif-corp-orctapp-2017.