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In re Compensation of Weiker

Court of Appeals of Oregon

May 28, 2015

In the Matter of the Compensation of Dianne R. Weiker, Claimant.
DOUGLAS COUNTY SCHOOL DISTRICT NO. 4, Respondent Dianne R. WEIKER, Petitioner,

Argued and Submitted July 22, 2014.

Workers' Compensation Board. 1103645.

Philip M. Lebenbaum argued the cause for petitioner. With him on the briefs was Hollander, Lebenbaum & Gannicott.

Rebecca A. Watkins argued the cause for respondent. On the brief were Deborah L. Sather, Lauren L. Oda, and Sather, Byerly & Holloway, LLP.

Before Sercombe, Presiding Judge, and Haselton, Chief Judge, and Tookey, Judge.


Page 570

[271 Or.App. 391] SERCOMBE, P. J.

Claimant seeks judicial review of an order of the Workers' Compensation Board (board), which determined that the medical services requested by claimant were not compensable under ORS 656.245(1)(a). That statute requires claimant's self-insured employer to provide " medical services for conditions caused in material part" by a compensable injury. Claimant suffered a compensable injury, a traumatic blockage of the popliteal artery near her left knee, which was repaired by a popliteal bypass graft and several bypasses of other arteries to improve blood flow to the graft. Ten years later, because tests showed that several arteries leading to the popliteal graft were blocked and there was a lack of blood flow to that graft, doctors recommended an aortobifemoral bypass. The board determined that the medical evidence did not establish that the proposed aortobifemoral bypass was for any condition caused in material part by the traumatic blockage of the left popliteal artery. We review for substantial evidence and errors of law, ORS 656.298(7); ORS 183.482, and, for the reasons below, we affirm.

The facts are undisputed. In 1999, while claimant, a school custodian, was setting up some staging, a piece of the staging fell on her leg. She suffered a fracture to her left femur just above the knee and a traumatic occlusion of the popliteal artery at the fracture site--a blockage in the artery at the knee that connects the femoral artery in the upper leg to the tibial arteries in the lower leg. Employer accepted a claim for the left femur fracture and " traumatic occlusion of the popliteal artery," and it denied a claim for peripheral vascular disease--a broad term referring to narrowing of arteries outside the brain or heart that is associated with circulatory problems in the limbs.

To treat the popliteal artery occlusion, Dr. Landry and other doctors replaced the injured portion of the left popliteal artery with a left popliteal bypass graft. There was inadequate blood flowing into that graft, however, as a result of preexisting abnormal narrowing, called stenosis, in the arteries leading to that graft: the artery directly above the graft, the left femoral artery, and an artery in the pelvis area directly above that, the left common iliac artery. [271 Or.App. 392] The stenosis in those arteries was the result of preexisting artery occlusive disease--blockages in the arteries--which was caused by arteriosclerosis, an occlusive disease in which the blockages or narrowing are the result of the accumulation of cholesterol plaque. To improve blood flow to the popliteal graft, doctors did three things to the arteries above the graft: they performed a femoral-popliteal bypass above the knee; they performed a bypass from the femoral artery in the right leg to the femoral artery in the left leg; and they put a stent in the right common iliac artery. A few years after the surgery, claimant's claim was closed and she was awarded partial permanent disability for her left leg.

In 2009, an angiogram showed that claimant had blockages or narrowing in her arteries (various parts of the left iliac artery, left femoral artery, and a right tibial artery). The right iliac stent graft and the right-to-left-femoral graft were also blocked, though

Page 571

the left femoral-popliteal bypass graft that had replaced the injured portion of the popliteal artery was open. At the time, claimant was experiencing claudication in the left lower leg--a cramping, often during activity, caused by lack of blood circulating in the leg. The treating doctor recommended surgery to place an aortobifemoral bypass, a graft that originates in the abdominal aorta and has two limbs that go down and connect to the femoral artery of each leg.

After employer asserted that the proposed surgery was not causally related to the compensable injury, claimant requested administrative review before the director of the Department of Consumer and Business Services. The department issued a transfer order, under ORS 656.704(3)(b)(C), to the board for ...

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