Young v. Hermiston Good Samaritan

194 P.3d 857, 223 Or. App. 99, 2008 Ore. App. LEXIS 1469
CourtCourt of Appeals of Oregon
DecidedOctober 15, 2008
Docket0600370, 0507846; A134462
StatusPublished
Cited by12 cases

This text of 194 P.3d 857 (Young v. Hermiston Good Samaritan) 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
Young v. Hermiston Good Samaritan, 194 P.3d 857, 223 Or. App. 99, 2008 Ore. App. LEXIS 1469 (Or. Ct. App. 2008).

Opinion

LANDAU, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board upholding employer’s denial of her new or omitted medical condition claim for radiculopathy. The board issued its order after determining, based on medical evidence, that “radiculopathy” is merely a symptom and not a medical condition. Claimant asserts, additionally, that the board erred in upholding employer’s denial of her current combined condition. We conclude that the board did not err with respect to either claim and affirm.

The relevant facts are uncontested. Claimant worked for employer as an aide in an assisted care/nursing facility. On June 16, 2005, she suffered a compensable injury to her lower back when she moved a patient. Her symptoms included pain in the back and numbness and pain down her right leg to the toes. The diagnoses after examination were lumbar spine injury/strain and “right lumbar radiculopathy vs sciatica.” Claimant had an MRI, which revealed mild degenerative changes in the lumbar and thoracic areas, with a mild to moderate circumferential bulge of the annulus at L5-S1. Claimant’s symptoms gradually improved with physical therapy and medication, and, on August 1, 2005, her treating physician, Dr. Flaiz, released her to half-time work with restrictions in lifting and bending. In August 2005, employer accepted a claim for lumbar strain.

By September 1,2005, Flaiz noted that claimant was 90 percent improved. Claimant, however, continued to experience pain and numbness down her right leg and into her foot. On October 7, 2005, she requested acceptance of lumbar radiculopathy as a new or omitted medical condition. She continued to receive treatment, including epidural steroid injections for back pain and radiculopathy.

In November 2005, claimant underwent an insurer-arranged medical evaluation (IME) with Dr. Gillespie, an orthopedic surgeon, and Dr. Vincent, a neurosurgeon. The doctors opined that claimant’s symptoms of radiculopathy were not supported by objective findings. They explained that lumbar radiculopathy is pain that radiates along the course of a nerve root that exits from the spine. Gillespie and [102]*102Vincent opined that “radiculopathy” is a description of symptoms and not a distinct medical condition. Gillespie and Vincent opined that the major contributing cause of any rad-iculopathy that claimant might have been experiencing was not her work injury, but obesity, lordosis, ligamentous laxity, and poor conditioning. Flaiz concurred in Gillespie’s and Vincent’s opinions and further opined that claimant’s lumbar strain combined with preexisting degenerative arthritis, obesity, and deconditioning to cause or prolong claimant’s lower back symptoms.

Claimant was also evaluated by Dr. Crum, a chiropractor. In Crum’s opinion, claimant’s diagnosis includes neuralgia of the sciatic nerve and myofascial back pain from one of several different peripheral entrapment sites. He was unsure whether there was nerve root irritation in the lumbar region, but opined that, even in the absence of MRI findings showing a physical entrapment, there might be an inflammatory process irritating the nerve.

Dr. Hajjar, a neurosurgeon, examined claimant and concluded that claimant has right L5 radiculopathy, but that she also suffers from two preexisting conditions, spondylo-lysis at L5 and spondylolisthesis at L5-S1, that are the major contributing causes of her radiculopathy.

On December 1, 2005, employer denied claimant’s new or omitted condition claim for lumbar radiculopathy, explaining that the medical evidence suggested that radicu-lopathy is a description of symptoms rather than a medical condition. On January 5, 2006, employer amended its notice of acceptance to include a lumbar strain combined with preexisting, noncompensable degenerative changes. On January 6, 2006, employer denied claimant’s current condition and need for treatment, explaining that the disability and need for treatment are due in major part to preexisting noncom-pensable degenerative disc disease, arthritis, obesity, and deconditioning. Claimant requested a hearing on both denials.

At the hearing and before the board, employer argued that claimant’s claim for radiculopathy is not com-pensable. According to employer, under ORS 656.267(1), to begin the processing of a new or omitted medical condition [103]*103claim, “the worker must clearly request formal written acceptance of a new medical condition or an omitted medical condition from the insurer or the self-insured employer.” In this case, employer argued, claimant’s radiculopathy is not com-pensable because it is merely a symptom and not a “medical condition” within the meaning of the statute.

The board agreed with employer’s contention that, under ORS 656.267(1), symptoms do not qualify as “medical conditions” for purposes of the new or omitted medical condition claim. Reasoning that it is a medical question whether radiculopathy is a “condition” or a “symptom,” the board relied on the opinions of Gillespie and Vincent to conclude that radiculopathy is not a distinct medical condition, but rather a term used to describe the nature and location of a patient’s symptoms. Explaining that an insurer is not required to formally accept the symptoms of a condition, the board upheld employer’s denial of claimant’s radiculopathy. It therefore did not reach the question whether the radiculo-pathy, if it exists, is caused in major part by claimant’s injury. The board also upheld employer’s denial of claimant’s current combined condition, concluding that claimant’s otherwise compensable injury was no longer the major contributing cause of her combined condition.

Claimant seeks review, asserting that the board erred in upholding both denials. Claimant’s first two assignments of error address the board’s rejection of her new or omitted condition claim. Claimant asserts that the board erred in essentially treating the meaning of the statutory term “medical condition” as a question of medical evidence, contrary to Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or App 674, 146 P3d 336 (2006), rev den, 342 Or 473 (2007). In her third assignment of error, claimant contends that the board erred in finding her evidence as to compensability of the current combined condition unpersuasive.

Employer responds that the board did not treat the meaning of the statutory term as one of medical evidence. According to employer, the board clearly treated the distinction between a noncompensable symptom and a compensable medical condition as one of statutory construction, and properly treated the question whether claimant’s radiculopathy, [104]*104in fact, was one or the other as a question of medical evidence. As for the question of causation, employer contends that the board’s evaluation of the record is supported by substantial evidence.

We begin with claimant’s contention that, contrary to Karjalainen, the board improperly delegated a question of statutory construction to medical experts. In Karjalainen, the board concluded that the meaning of the term “arthritis or an arthritic condition” as used in ORS 656.005(24)(a)(A) presented a medical question to be determined by expert medical testimony.

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Cite This Page — Counsel Stack

Bluebook (online)
194 P.3d 857, 223 Or. App. 99, 2008 Ore. App. LEXIS 1469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/young-v-hermiston-good-samaritan-orctapp-2008.