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In re Compensation of English

Court of Appeals of Oregon

May 13, 2015

In the Matter of the Compensation of John M. English, Claimant.
v.
LIBERTY NORTHWEST INSURANCE CORPORATION; and Trees, Inc., Respondents John M. ENGLISH, Petitioner,

Argued and Submitted March 31, 2015.

1105186. Workers' Compensation Board.

Julene M. Quinn argued the cause and filed the briefs for petitioner.

Carrie D. Wipplinger argued the cause for respondents. On the brief was David O. Wilson.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

Page 471

[271 Or.App. 212] FLYNN, J.

This is a workers' compensation case in which we review a decision of the Workers' Compensation Board (the board) that upheld employer's denial of left knee conditions that claimant sought to prove were compensable as consequential conditions of claimant's compensable 2010 left knee injury. The issue is whether the board applied an overly restrictive test when it required claimant to prove that the " accepted conditions" for the 2010 injury were the major contributing cause of the denied conditions. Claimant argues that, under this court's opinion in Brown v. SAIF, 262 Or.App. 640, 325 P.3d 834, rev allowed, 356 Or. 397, 337 P.3d 127 (2014), the correct inquiry is whether the claimed consequential conditions were caused in major part by the " compensable injury," and that that term is not limited to the " accepted conditions." We agree with claimant that under Brown and its construction of the term " compensable injury," ORS 656.005(7), the board applied an incorrect standard of proof in evaluating claimant's consequential condition claim. We therefore reverse the board's order and remand the case to the board for reconsideration.

Claimant injured his left knee at work in 2010, and employer accepted a nondisabling left knee medial hamstring strain and a left knee lateral compartment contusion. Approximately one year later, claimant was injured outside of work when he stepped off of a deck with his left foot and his left knee popped, causing pain and causing claimant to fall to the ground. Doctors diagnosed additional conditions resulting from the new injury, for which claimant sought compensation[1] on the theory that the fall was caused by his knee buckling and that the buckling was caused by the 2010 injury. Employer denied

Page 472

claimant's request for acceptance of the additional conditions, and the Administrative Law Judge (ALJ) and the board upheld the denials. The board reasoned that claimant failed to prove " his accepted left knee medial hamstring strain and/or lateral compartment contusion was the major contributing cause of his claimed consequential [271 Or.App. 213] knee conditions. ORS 656.266(1); ORS 656.005(7)(a)(A)." (Emphasis in original.)

Compensability of the disputed conditions is governed by ORS 656.005(7), which provides, as pertinent to this case:

" (a) A 'compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:
" (A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause ...

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