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In re Arms

Court of Appeals of Oregon

February 4, 2015

In the Matter of the Compensation of Tommy S. Arms, Claimant.
SAIF CORPORATION and Harrington Campbell, Inc., Respondents Tommy S. ARMS, Petitioner,

Argued and Submitted May 2, 2014

Page 660

Workers' Compensation Board. 1002902, 1005062.

Christine I. Jensen argued the cause and filed the briefs for petitioner.

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

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


Page 661

[268 Or.App. 763] HADLOCK, J.

Claimant suffered a compensable spinal injury at the C5-6 level while working for employer in 2003. He received spinal fusion and discectomy surgery for that condition. While claimant was being treated for that injury, imaging revealed a preexisting degenerative disc disease at the C6-7 level. In 2010, claimant's surgeon recommended discectomy and fusion surgery for the preexisting C6-7 disease. Claimant requested that SAIF, employer's workers' compensation insurer, authorize that surgery, asserting that the 2003 surgery had worsened the C6-7 degeneration. SAIF denied compensability of the proposed surgery. Claimant requested a hearing, asserting that " SAIF should be liable for the medical services pursuant to ORS 656.225 [related to worsening of preexisting conditions] or on the basis of a consequential condition claim." After the hearing, the administrative law judge (ALJ) concluded that ORS 656.225 did not apply under the circumstances and that the proposed surgery was not compensable under a consequential-condition analysis because the preexisting disc disease was the major contributing cause of the C6-7 degeneration. The Workers' Compensation Board adopted the ALJ's opinion and affirmed the denial. Claimant now seeks judicial review of the board's order. We reverse and remand for reconsideration.

The following facts are not in dispute. Claimant was injured while working as a drywall hanger in 2003. Claimant was working on a lift. Another employee accidentally raised the lift, causing claimant's head to hit the ceiling and injuring his neck. Claimant was diagnosed with a " large right C5-6 disc herniation." Imaging studies showed that claimant also had a " mild disc bulge with moderate degenerative disc space narrowing and anterior spurring at C6-7." The condition at C6-7 was the result of natural aging processes and was not related to the work accident. Dr. Kitchel, an orthopedic surgeon, performed fusion and discectomy surgery to correct the C5-6 injury. Claimant filed a workers' compensation claim for right-sided C5-6 disc herniation, which SAIF accepted.

In 2009, claimant began treatment with Dr. Kovacevic, an occupational-medicine physician, for left arm, hip, and [268 Or.App. 764] leg pain. A 2010 MRI showed that claimant had degenerative changes at several levels of his cervical spine, including at C6-7, that had progressed since 2003. Kovacevic referred claimant back to Kitchel. Kitchel diagnosed cervical radiculopathy and " [s]tatus post C5-C6 anterior cervical discectomy and fusion with transitional disc degeneration C6-C7." Kitchel believed that the C5-6 surgery was the " major precipitating cause" of the C6-7 disc degeneration and radiculopathy. In a deposition, Kitchel stated that the change at the C6-7 level was greater than he would have anticipated from the aging process alone. He explained that surgically fusing one level of the spine increases the motion and changes the " center of rotation of the motion" at the adjacent level and thereby " accelerate[s] the degeneration and the need for treatment on the adjacent level." Kitchel recommended that claimant's 2003 claim be reopened to allow claimant treatment at the C6-7 level.

In May 2010, Dr. Rosenbaum, a neurosurgeon, performed an independent medical examination of claimant for SAIF. Rosenbaum concluded that the C6-7 condition was " degenerative arthritis of the cervical spine" that preexisted the 2003 work injury and had subsequently worsened consistently with the normal aging process rather than at an accelerated rate. He opined that the 2003 condition and surgery had " not been more than slight contributors to the C6-7 pathology." SAIF denied the compensability of the C6-7 degeneration under the 2003 claim.

The next month, after claimant's symptoms had worsened, Kitchel recommended cervical discectomy and fusion surgery at the C6-7 level. He again asserted that the 2003 surgery had " accelerated claimant's preexisting C6-7 degeneration and had been the major cause of the subsequent pathological worsening of that condition." SAIF denied authorization for the surgery on the ground that it had not accepted claimant's condition at that level. Two weeks later, claimant's attorney asked SAIF to authorize the proposed surgery, stating:

Page 662

" Irrespective of the independent compensability of the C6-7 condition, claimant believes that he is entitled to the proposed surgery pursuant to ORS 656.225. His accepted injury (including the fusion performed to address it) is the [268 Or.App. 765] major contributing cause of a pathological worsening of claimant's preexisting C6-7 condition. The proposed surgery is prescribed by Dr. Kitchel to treat the change in the preexisting condition that was caused by the fusion's alteration of the cervical spine mechanics."

In August 2010, Kitchel discussed claimant's case with a SAIF representative. Kitchel reiterated that the 2003 surgery was the " major cause of the interval change in [claimant's] degenerative disc disease at C6-7 between 2003 and 2010." However, he agreed with Rosenbaum that " the surgery [was] not the major contributing cause of the actual condition, the degeneration at C6-7 itself." Kitchel believed that " age and genetics are the major cause of the actual condition itself." A few days later, SAIF again issued a denial, asserting that the proposed C6-7 surgery was not compensably related to the accepted C5-6 condition.

The following month, another orthopedic surgeon, Dr. Coletti, conducted an independent medical examination for SAIF. Coletti concluded that both the preexisting degeneration and the 2003 surgery had contributed to claimant's subsequent C6-7 degeneration, but that the age-related degeneration had been the major cause of the C6-7 condition. ...

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