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In re Compensation of Ayres

Court of Appeals of Oregon

August 7, 2013

In the Matter of the Compensation of Randi P. Ayres, Claimant.
v.
RANDI P. AYRES, Respondent. VIGOR INDUSTRIAL, LLC, Petitioner,

Argued and submitted on September 18, 2012.

Workers' Compensation Board 0901523

Jerald P. Keene argued the cause for petitioner. With him on the briefs was Oregon Workers' Compensation Institute, LLC.

Kevin Keaney argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

HADLOCK, J.

The dispute in this workers' compensation case centers on the statutes governing claims for "combined conditions" that arise when "an otherwise compensable injury combines * * * with a preexisting condition to cause or prolong disability or a need for treatment * * *." ORS 656.005(7)(a)(B). Such a "combined condition" is compensable "only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause" of the disability or the need for treatment of the combined condition. Id. In this case, the Workers' Compensation Board issued an order that set aside employer's denial of claimant's claim for combined conditions, ruling that employer had not met its burden of proving that claimant's otherwise compensable injury no longer was the major contributing cause of his disability and need for treatment. On employer's petition for judicial review, we affirm.

The issue we address on review is a legal one, and we briefly describe the facts solely to provide context for our discussion. Claimant slipped at work and injured his right foot in early 2008. Employer accepted a claim for a nondisabling foot strain later that year. In January 2009, after receiving new medical evaluations, claimant submitted a claim for two new foot conditions: a navicular fracture and avascular necrosis (AVN) of the navicular bone in his right foot, both of which predated his work injury. Employer denied those conditions in a document titled "combined condition denial, " and claimant requested, and was granted, a hearing before an administrative law judge (ALJ).

After that hearing, the ALJ issued an opinion and order addressing what he described as employer's "denial of [claimant's] additional medical condition claims for a right foot navicular fracture and [AVN] in the navicular bone." The ALJ found that claimant's "disability and need for treatment for the AVN and the fracture was caused at least in material part by his injury." Consequently, the ALJ ruled, claimant had established that he had an "otherwise compensable injury, " that is, that his work-related injury "was at least a material cause of the disability and need for treatment for the AVN and fracture." See Hopkins v. SAIF, 349 Or 348, 351, 245 P.3d 90 (2010) ("To establish a 'compensable injury, ' the worker must prove that a work-related injury is a material contributing cause of a disability or need for treatment.").

However, because the ALJ also found that claimant had preexisting arthritis, he considered the possible applicability of ORS 656.005(7)(a)(B), which specifies when "combined conditions" are compensable:

"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 compensable injury is the major contributing cause of the disability of the combined condition or the need for treatment of the combined condition."

It is undisputed that claimant's arthritis is a "preexisting condition" for purposes of ORS 656.005(7)(a)(B). It also is undisputed that claimant's AVN and navicular fracture had not been diagnosed or treated prior to claimant's work injury. Consequently, neither of those conditions is a "preexisting condition" for purposes of that statute, even though they predated claimant's injury. See ORS 656.005(24)(a) (defining "preexisting condition").[1]

The ALJ found, based on medical evidence in the record, that claimant's preexisting degenerative arthritis contributed to some degree to his disability and need for treatment. Therefore, the ALJ determined, claimant had a combined condition that consisted of "the preexisting arthritis and the injury."[2] The ALJ then analyzed whether employer had met its burden of proving, under ORS 656.266(2)(a), that claimant's "otherwise compensable injury" was no longer the major contributing cause of his disability and need for treatment of the combined condition.[3] Finding no persuasive evidence that claimant's preexisting arthritis made a significant contribution to his disability and need for treatment--as compared to the contribution from the injury itself--the ALJ concluded that employer had not proved that the otherwise compensable injury no longer was the major contributing cause of claimant's disability and need for treatment. Accordingly, the ALJ set aside employer's denial of the claim.

Employer sought review before the Workers' Compensation Board, presenting a two-part argument. First, employer argued that claimant's AVN and navicular fracture also contributed to his combined condition, which did not comprise only arthritis and the work injury. Second, employer argued that the pertinent comparison, for purposes of the "major contributing cause" analysis, was between the work injury and all other contributors to claimant's disability and need for treatment, not just those contributors that qualified as "preexisting conditions." Thus, employer argued, the board should determine whether claimant's work injury remained the major contributing ...


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