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In re Compensation of DeMarco

Court of Appeals of Oregon

May 13, 2015

In the Matter of the Compensation of Daniel L. DeMarco, Claimant.
v.
Daniel L. DeMARCO, Respondent SAIF CORPORATION and TNT Management Resources, Petitioners,

Argued and Submitted, January 9, 2015

0806530. Workers' Compensation Board.

David L. Runner argued the cause and filed the briefs for petitioners.

James W. Moller argued the cause and filed the brief for respondent.

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

OPINION

[271 Or.App. 227] FLYNN, J.

SAIF Corporation and its insured, TNT Management Resources (collectively, SAIF), petition for review of an order of the Workers' Compensation Board that set aside SAIF's denial of claimant's new/omitted medical condition claims for left foot and lower extremity cellulitis, left foot necrotizing fasciitis and group A strep infection, and " below-the-knee" amputation of the left leg. SAIF assigns error to the board's conclusion that

Page 661

" the medical opinions upon which it relied were legally sufficient or otherwise adequate to prove major contributing cause under ORS 656.005(7)(a)(A)." We conclude that the board did not err, and affirm.

We summarize the administrative law judge's (ALJ) findings of fact, which the board adopted. On September 6, 2007, while working for employer and assigned to a glass company, claimant sustained a compensable injury when two glass shower doors landed on the top of his left foot. SAIF accepted the claim for closed left foot fracture, and abrasions and contusions to the left foot. Claimant's attending physician, orthopedic surgeon Dr. Ballard, also noted a " moderate to severe" amount of swelling. Throughout claimant's treatment with Ballard, claimant continued to have swelling in his left foot severe enough that Ballard prescribed larger sized work boots to accommodate the swelling. SAIF closed the claim on April 17, 2008.

On April 18, 2008, claimant went to the emergency room complaining of foot and leg swelling with redness, and a fever. He also had an area of " oozing" on the top of his foot at the site of the fracture. Claimant was diagnosed with cellulitis, and his condition in the hospital deteriorated rapidly. He was taken to the ICU with renal and respiratory failure, and sepsis of the leg. Claimant was diagnosed with necrotizing fasciitis and administered a tourniquet. The following day, Dr. VanDerHeyden performed a below-the-knee amputation. Lab tests revealed that the necrotizing fasciitis resulted from a group A streptococcal infection. Claimant filed new/omitted medical condition claims for the cellulitis, group A strep infection, necrotizing fasciitis, and the amputation. SAIF denied the claims, and claimant requested a hearing.

[271 Or.App. 228] The record contains opinions from four of claimant's treating physicians, including Ballard and VanDerHeyden, as well as three physicians who performed record reviews, and from Dr. Puziss, who examined claimant and authored a report. Those opinions included an explanation that swelling causes reduced blood flow and therefore reduced immunological response that provides a good host environment for bacteria, creating essentially a " petri dish" for the infection. They explained that group A strep bacteria is ubiquitous and could have entered the body through any minor skin break some time after the work injury, but developed into an infection in the foot because of the swelling there.

Medical opinions differed as to whether claimant's left foot fracture caused the infection and eventual amputation of his left foot. Dr. Selinger and Dr. Robinovitch, who conducted record reviews, as well as VanDerHeyden and Puziss, agreed that it was " extremely" or " extraordinarily" unlikely that claimant would have developed the infection that led to the amputation of his foot were it not for the chronic swelling associated with his left foot fracture. VanDerHeyden described the infection as " a secondary infection, i.e. complication of the original injury." Selinger and Rabinovitch, both infectious disease specialists, emphasized that the swelling impaired claimant's defenses and, thus, allowed the bacteria to thrive. Rabinovitch opined it was " highly likely that the infection occurred as a result of the original trauma."

Following a hearing, the ALJ found that claimant's evidence established the compensability of the conditions under either a material or major contributing cause standard, but concluded that the material contributing cause standard applied because the group A strep infection arose directly from the injury. The ...


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