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In re Compensation of Brown

Court of Appeals of Oregon

May 7, 2014

In the Matter of the Compensation of Royce L. Brown, Sr., Claimant.
v.
SAIF CORPORATION and HARRIS TRANSPORTATION COMPANY, LLC, Respondents ROYCE L. BROWN, SR., Petitioner,

Argued and submitted March 07, 2014.

Page 835

Workers' Compensation Board. 1102146.

Julene M. Quinn argued the cause for petitioner. With her on the briefs was Kryger Alexander Carlson PC.

Julie Masters argued the cause and filed the brief for respondents.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.

OPINION

Page 836

[262 Or.App. 642] EGAN, J.

Claimant seeks review of an order of the Workers' Compensation Board upholding the denial of his combined-condition claim based on the board's determination that SAIF Corporation (SAIF) had established that claimant's accepted lumbar strain is no longer the major contributing cause of his combined condition. The facts are not in dispute. We review for errors of law, ORS 656.298(7), ORS 183.482(7), (8), and reverse and remand for reconsideration.

We take the facts from the administrative law judge's (ALJ's) findings of fact, which the board adopted and which SAIF does not challenge. Claimant has been working for employer as a truck driver since March 2002. In 1993, claimant underwent an MRI of his lumbar spine when he experienced back pain after falling at a friend's house. In 2002, he slipped and fell on his buttocks in a restaurant bathroom. A lumbar x-ray showed degenerative changes. Nevertheless, the medical records show no treatment between 2002 and July 2006, when claimant appeared in the emergency room with complaints of a one-month history of worsening pain that radiated down his right leg to his calf.

In 2006, claimant received a referral to an orthopedist, Dr. Matthew Gambee. After an updated MRI revealed an L4-5 disc protrusion with compression of the L4 nerve root along with a plethora of degenerative changes, Gambee performed an epidural steroid injection, which provided no relief. A referral to a neurosurgeon, Dr. Hoang N. Le, followed. Le performed a surgery that included a right-sided L4-5 decompression, discectomy, and transforaminal lumbar interbody fusion. In April 2007, claimant reported having no back or leg pain and was released to full duty.

From April 2007 through the date of the work injury, claimant performed his regular duties as a truck driver. He had an ongoing symptom of numbness in the middle two toes of his right foot. He had occasional minor back pain " that most people get with a lot of lifting."

The claim at issue involves an accident on December 14, 2008. After hanging heavy truck-tire chains under his [262 Or.App. 643] truck, claimant experienced a sudden burning with sharp pain in his lower back that radiated into his right leg. On the following day, he made his way to the emergency room, making those same complaints. X-rays of his back showed no evidence of acute bone or joint abnormality so the doctor placed him on modified duty restrictions and prescribed pain medications.

Later, claimant saw Dr. Susan Davis who diagnosed a lumbar strain secondary to the December 14, 2008, work injury. Claimant reported no improvement with physical therapy. His symptoms of back pain with aching into his right hip and down the right leg continued. A scan revealed L4-5 right marked foraminal stenosis related to spondylolisthesis and spurring. Ultimately, claimant received a referral back to his neurosurgeon, Le, who ordered an MRI that revealed an alignment abnormality, bony spurring around the fusion, and a narrowing of the right L4 neural foramen. Le referred claimant back to Gambee for steroid injections, which provided no relief. Le then recommended removal of certain instrumentation in claimant's back and a new surgery for the decompression of the right L4-5 nerve root.

SAIF accepted a claim for a disabling " lumbar strain." SAIF made arrangements for a medical examination to close the claim. Dr. Fernando Proano completed a closing examination on August 18, 2009; he declared claimant " medically stationary" and announced that there were no impairment findings

Page 837

due to the " accepted condition." SAIF issued a notice of closure that awarded no permanent-disability benefits for the accepted lumbar strain.

In October 2009, Le performed a right L4-5 surgery removing the instrumentation and decompressing the L4 nerve root. Claimant obtained no significant relief from the surgery and continued to experience low back pain with symptoms radiating into his right leg.

In January 2010, claimant requested acceptance of [262 Or.App. 644] " lumbar strain combined with lumbar disc disease and spondylolisthesis." SAIF issued a denial of the combined-condition claim, and claimant requested a hearing. An ALJ heard the case and issued an opinion and order that set aside the denial. SAIF issued a modified notice of acceptance of " lumbar strain combined with preexisting lumbar disc disease and preexisting spondylolisthesis."

Less than two months later, SAIF sent claimant to a medical examination with Dr. Edmund Frank, who opined that the " lumbar strain combined with lumbar disc disease and spondylolisthesis" had resolved by August 18, 2009, and that the work injury had ceased to be the major contributing cause of claimant's disability and need for treatment. Frank further opined that claimant's symptoms related to right L5 radiculopathy secondary to the preexisting spondylolisthesis at L4-5, the fusion-related pseudoarthrosis at L4-5, and the scarring of the nerve root were unrelated to the work injury. In April 2011, SAIF issued a denial of claimant's " current combined condition," stating that his " accepted injury has ceased to be the major contributing cause" of the " lumbar strain combined with the preexisting disc disease and preexisting spondylolisthesis, on or after August 19, 2009."

Claimant requested a hearing. His attorney solicited a report from Proano, who had prepared the report for the first notice of closure, and who wrote that claimant was still being treated for the combined condition of " lumbar strain combined with preexisting lumbar disease and preexisting spondylolisthesis." Proano explained that, having now taken claimant's preexisting condition into account, he had changed his opinion and no longer believed that claimant was medically stationary. Proano opined that claimant's current symptoms represented a pathological worsening of his preexisting conditions and had resulted from the work injury. Proano explained that the spinal ...


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