In the Matter of the Compensation of Dennis L. Corkum, Claimant.
BI-MART CORPORATION, Respondent Dennis L. CORKUM, Petitioner,
Argued and Submitted November 4, 2014.
Workers' Compensation Board. 1102195.
Dale C. Johnson argued the cause and filed the brief for petitioner.
James W. Moller argued the cause and filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[271 Or.App. 413] HADLOCK, J.
Claimant, who had a hernia in his groin surgically repaired in 1995, was diagnosed with another hernia in 2011 after he experienced groin pain while lifting heavy merchandise at work. Claimant filed a workers' compensation claim for that groin condition. Employer conceded that the work incident was a material contributing cause of claimant's condition, but it denied his workers' compensation claim, asserting that the work injury had combined with the 1995 hernia condition, which was a preexisting condition that was the major contributing cause of claimant's disability and need for treatment of the resulting combined condition. The Workers' Compensation Board agreed with employer and affirmed the denial. Claimant now seeks judicial review of the board's order, arguing that the board relied on the opinion of a doctor who improperly included in his weighing of contributory causes a condition, abdominal wall weakness, that merely rendered claimant more susceptible to hernias and thus should have been excluded from consideration. We reverse and remand.
We frame our discussion, as did the board, in terms of the " combined condition" analysis. A combined condition arises when " an otherwise compensable injury" --that is, an accidental injury " arising out of and in the course of employment," ORS 656.005(7)(a)--" combines * * * with a preexisting condition to cause or prolong disability or a need for treatment." ORS 656.005(7)(a)(B). Such a combined condition is compensable only " to the extent that the otherwise compensable injury is the major contributing cause" of the combined condition's disability or need for treatment. Id. See Vigor Industrial, LLC v. Ayres, 257 Or.App. 795, 802, 310 P.3d 674 (2013), rev den, 355 Or. 142, 326 P.3d 1207 (2014) (explaining ORS 656.005(7)(a)(B) to have that dual significance). Thus, if a preexisting condition is the major contributing cause of a combined condition, the combined condition is not compensable. However, not all conditions from which a worker [271 Or.App. 414] suffers before a workplace injury qualify as preexisting conditions that " count" for purposes of the combined-condition analysis. To the contrary, a condition that merely renders a worker more susceptible to a work-related injury is deemed not to " contribute to disability or need for treatment." ORS 656.005(24)(c). Thus, if a condition merely renders a worker more susceptible to injury, it is not a " preexisting condition" and it " play[s] no part in the 'major contributing cause' analysis."  Vigor Industrial, 257 Or.App. at 803. As our discussion of the facts and the board's analysis will demonstrate, that dichotomy--" preexisting condition" versus " susceptibility" --is key to this case.
The underlying facts are not in dispute. In 1953, when claimant was five years old, he had a left inguinal hernia repaired. Claimant had a second inguinal hernia repaired in 1995, that time on the right side. That hernia was not work related. The hernia was " indirect," meaning that it protruded through the internal inguinal ring, a natural opening in the abdominal wall. It was repaired through an " open surgery" procedure in which the surgeon attached reinforcing mesh to the outside of the abdominal wall. After that surgery, claimant had no further symptoms, and the repair site was not monitored by any doctor.
While he was working for employer in January 2011, claimant felt a sharp pain in his right groin as he lifted a 40 to 50-pound box. Claimant was referred to a surgeon,
Dr. Fontus, who diagnosed a right inguinal hernia and a smaller, asymptomatic left inguinal hernia. Fontus recommended surgical repair.
Claimant made a workers' compensation claim for " right groin condition." Employer requested an independent medical examination, which was performed by Dr. Bernardo. Bernardo diagnosed a " recurrent right inguinal hernia" and an " asymptomatic, previously unrecognized left inguinal [271 Or.App. 415] hernia." He also discovered an asymptomatic umbilical hernia of which claimant had not been aware. Bernardo opined that the left inguinal hernia and the umbilical hernia were not work related. In the report that he wrote after the examination, Bernardo stated that claimant's right inguinal hernia " clearly has been present for some period of time." In his view, it was " medically unlikely" that the work incident, which he described as a " modest lifting event," caused the hernia. He added, " It is much more likely that a small recurrent hernia has been present for some period of time and that hernia has enlarged steadily in the years following the original repair. The examinee's work event then enlarged the hernia, crimped it, or otherwise brought it to his attention." Bernardo noted that up to 10 percent of inguinal hernia repairs fail over time. He opined that claimant's " recurrence is an outgrowth of whatever inadequacies may have existed at the original repair. It is entirely likely that some level of recurrence has been present for months or even years." Ultimately, Bernardo concluded that claimant's right hernia
" represents a recurrence of a previously repaired, non-job related inguinal hernia. The presence of that previous hernia and its failure over time is a significant preexisting condition and in toto represents the majority cause of the recurrent hernia on the right side. The job event is a material contributing cause of the disability and need for treatment. That is, the examinee has a documented work event that led to pain and problems. However, in this instance, the majority cause of the hernia is the preexisting hernia."
Bernardo added that claimant's disability and need for treatment was " primarily related to the preexisting hernia and the ...