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In re Compensation of Vantassel

Court of Appeals of Oregon

March 15, 2017

In the Matter of the Compensation of Shelby J. Vantassel, Claimant.
v.
SAIF CORPORATION; and Robert Warren Trucking, LLC, Respondents. Shelby J. VANTASSEL, Petitioner,

          Argued and submitted November 10, 2015

         Workers' Compensation Board 1301453

          Keith D. Semple argued the cause for petitioner. With him on the briefs was Julene M. Quinn.

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

          Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

         Case Summary: Claimant seeks review of an order of the Workers' Compensation Board upholding SAIF's denial of an injury claim for a disc herni-ation at L5-S1 that occurred when claimant stepped out of a truck. He contends that the board erred in determining that SAIF met its burden to prove that his two prior disc herniations and surgeries at L5-S1 were preexisting conditions that combined with the work incident and were the major contributing cause of claimant's need for treatment. Claimant contends that the medical evidence shows that the disc herniations and surgeries caused a weakness in claimant's disc that was a mere susceptibility that could not be considered in determining major contributing cause. Held: Substantial evidence supports the board's fnd-ing that SAIF met its burden to show that claimant's preexisting disc herniations and surgeries were the major contributing cause of his disability and need for treatment and not a mere susceptibility.

         Affrmed.

          SERCOMBE, P. J.

         Claimant seeks review of an order of the Workers' Compensation Board upholding SAIF's denial of an injury claim for a disc herniation at L5-S1 that occurred when claimant stepped out of a truck at work. Claimant contends that the board erred in determining that the claim was not compensable because claimant's two previous disc herniations and surgeries at L5-S1 were preexisting conditions that combined with the work incident and that were the major contributing cause of claimant's need for treatment. In reviewing the board's order for substantial evidence and errors of law, ORS 183.482(8)(a), (c), we conclude that the board did not err, and affirm.

         The facts are largely undisputed. Claimant has had two previous noncompensable surgeries for a disc herniation at L5-S1, in 2002 and 2009. At work, in December 2012, as claimant was getting out of a truck, he felt immediate intense pain down both legs. Doctors diagnosed a recurrent L5-S1 disc herniation with lumbar radiculopathy.

         At SAIF's request, claimant was examined by Dr. Vessely, an orthopedic surgeon. Vessely diagnosed "[r]ecurrent disc herniation at L5-S1" and "[s]tatus post lumber laminectomy and discectomy x2 at L5-S1, right side[.]" Vessely was of the opinion that claimant's injury combined with preexisting conditions in claimant's back, including two prior disc herniations at L5-S1 and two prior surgeries. In response to the question whether the diagnosed conditions were "consistent with the described mechanism of injury, " Vessely explained that, although stepping out of the truck was the precipitating cause of claimant's most recent disc herniation, claimant's previous disc herniations and surgeries were the major contributing cause:

"I do not feel that the on-the-job mechanism of getting out of a truck where he was just stepping down and nothing unusual happened other than severe pain, would be the major contributing cause. It appears that this is the time that he had the disc displacement occurring and he did not have any symptoms in his back or any incident prior to this. * * * Therefore, it is the fact that he has had two prior laminectomies and discectomies at L5-S1, and a minimal cause of the episode at work[.] *** It is my opinion that the preexisting is by far the more major contributing cause."

         Vessely expressed the opinion that claimant's "preexisting conditions, including the surgery, did combine with [an] event at work and that the preexisting conditions are the major contributory cause for his present need for treatment or disability." Based on Vessely's opinion, SAIF denied the claim.

         Claimant requested a hearing. The record before the administrative law judge (ALJ) included a medical report from Dr. Sherman, who had performed surgery on claimant's back. Sherman opined that, based on claimant's description of his symptoms, the incident at work, imposed on claimant's weakened disc, was the cause ...


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