Wantowski v. Crown Cork & Seal

29 P.3d 1165, 175 Or. App. 609, 2001 Ore. App. LEXIS 1178
CourtCourt of Appeals of Oregon
DecidedAugust 8, 2001
Docket98-08420, 98-07743; A108424
StatusPublished
Cited by5 cases

This text of 29 P.3d 1165 (Wantowski v. Crown Cork & Seal) 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
Wantowski v. Crown Cork & Seal, 29 P.3d 1165, 175 Or. App. 609, 2001 Ore. App. LEXIS 1178 (Or. Ct. App. 2001).

Opinions

WOLLHEEM, J.

Claimant seeks review of an order of the Workers’ Compensation Board that upheld employer’s denial of claimant’s aggravation claim for a low back condition. After the Board issued its decision, the Supreme Court established a different test for determining whether an injured worker’s compensable condition actually worsened. See SAIF v. Walker, 330 Or 102, 996 P2d 979 (2000). Accordingly, we reverse and remand for reconsideration.

The facts are uncontested. Claimant worked for employer for over 30 years. Between 1976 and 1996, claimant filed a series of workers’ compensation claims, each accepted by employer. As a consequence of claimant’s compensable workplace injuries, claimant underwent six separate lumbar spinal surgeries. The last sequénce of claims included a February 1993 L4-5 disc herniation claim. Following surgery to remove extruded disc material, the claim was closed in July 1994 with an award of 12 percent unscheduled permanent partial disability (PPD) for claimant’s low-back injury and 5 percent scheduled PPD for loss of use or function in his right foot. In March 1996, claimant filed, and employer accepted, an aggravation claim for a recurrent L4-5 disc herniation that resulted in further surgery to repair the injury. The aggravation claim was closed in April 1997 and, in September 1997, an order on reconsideration awarded claimant 12 percent unscheduled PPD for his low-back injury.

In April 1998, claimant experienced an acute back strain and returned to his attending physician, Dr. Schmidt. Claimant’s strain improved slightly after that visit. However, claimant returned to Schmidt in June 1998 complaining of increased pain in his low back, pain in his right leg and calf, and numbness in his right big toe. Schmidt’s file notes from that appointment reveal that claimant’s right knee jerk was diminished and that both ankle jerks were absent. Schmidt also noted that claimant developed pain at 45 degrees of straight-leg raising on the right. Schmidt ordered diagnostic testing that included an MRI, a CT scan and an x-ray.

[612]*612Claimant then underwent a compelled medical examination (CME) that was requested by employer pursuant to ORS 656.325(l)(a).1 The CME physicians reported a waxing of claimant’s symptoms but concluded that no objective evidence existed of an actual worsening of claimant’s condition.

After examining claimant’s test results, Schmidt referred claimant to Dr. Waldram, a surgeon, to explore the possibility of lumbar fusion surgery. Waldram’s physical exam revealed that claimant had a limited back range of motion as well as some dysesthesias and decreased sensation in his right foot.2 Waldram also noted that claimant’s diagnostic tests indicated that claimant suffered from severe degenerative changes at L4-5 and L5-S1 with laminectomy defects at both levels. Waldram concluded that claimant’s only reasonable chance of improvement would come through a fusion.

Employer denied claimant’s aggravation claim in September 1998. The administrative law judge (ALJ) affirmed the denial. In the opinion and order, the ALJ explained:

“Claimant has not worked since August and may well be less able to work in the broad field of general occupation without undergoing the fusion recommended by [Waldram]. However, I am unable to find objective evidence to support an actual worsening of claimant’s compensable condition.
“* * * Now, according to his history, he is unable to work without [a fusion]. Claimant may be worse, but this is based only on what he says, not on objective findings.
“Both [Waldram] and [Schmidt] concurred with letters written by claimant’s counsel which stated that there was an objective basis for an actual worsening of claimant’s condition. However, when [Schmidt’s] deposition was taken, his testimony was not consistent with that concurrence. [613]*613Claimant’s neurological findings are not worse, and diagnostic testing does not support a finding of worsening. Claimant’s range of motion reduction is equivocal. In concluding that claimant is worse, his physicians have relied on his complaints of increased pain and numbness. Claimant’s physicians believe claimant. So do I. However, these are not objective findings to support a conclusion of an actual worsening of claimant’s condition even if his symptoms have worsened sufficiently to conclude that his condition has worsened. [SAIF v. Walker], 145 Or App 294[, 930 P2d 230] (1996). Consequently, claimant has failed in his burden of proof and the denial must be affirmed.”

On reconsideration, the ALJ disagreed with claimant’s description of the holding in Walker, noted that Walker did not explicitly address the objective findings requirement for aggravation claims, and explained that he rejected the MRI results as not constituting objective findings because the post-operative changes identified by those results could not be dated. On review, the Board adopted and affirmed the ALJ’s order with one minor factual addition.

On judicial review, claimant assigns as error the Board’s conclusion that claimant’s physicians improperly relied upon claimant’s worsened symptoms in determining that claimant’s condition had actually worsened and determined that there were no objective findings to support a conclusion that claimant’s condition had actually worsened. Claimant argues that, after the Board reached its conclusion, the Supreme Court issued Walker, which established a different test for aggravation claims from the one followed by the Board. Walker, 330 Or at 105. In addition, claimant argues that there are sufficient objective findings in the record to support his physicians’ conclusions that claimant’s condition has actually worsened. Employer argues that the Board correctly concluded that claimant failed to establish a compen-sable aggravation claim. Specifically, employer contends that claimant failed to prove a symptomatic worsening by medical evidence supported by objective findings and that the Board’s conclusion that there were no objective findings to support the aggravation claim is supported by substantial evidence.

We review the Board’s legal determinations for errors of law. ORS 183.482(7). At issue here is whether the [614]*614Board applied the correct test when it denied claimant’s aggravation claim.

ORS 656.273 describes the aggravation claim:

“(1) After the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings. * * *
“(3) * * * The claim for aggravation must be accompanied by the attending physician’s report establishing by written medical evidence supported by objective findings that the claimant has suffered a worsened condition attributable to the compensable injury.”

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Cite This Page — Counsel Stack

Bluebook (online)
29 P.3d 1165, 175 Or. App. 609, 2001 Ore. App. LEXIS 1178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wantowski-v-crown-cork-seal-orctapp-2001.