In the Matter of the Compensation of Barbara J. DeBoard, Claimant.
FRED MEYER, Respondent. Barbara J. DeBOARD, aka Barbie J. DeBoard, Petitioner,
and submitted November 3, 2015
Compensation Board 1302758
Christopher D. Moore argued the cause and fled the briefs for
Rebecca A. Watkins argued the cause for respondent. With her
on the brief was Sather, Byerly & Holloway, LLP.
Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge
strained her back in the course of her work for Fred Meyer
(employer). Following an accepted workers' compensation
claim for a disabling thoracic back strain, she fled a new or
omitted condition claim for "disc protrusions" in
her thoracic spine. Employer denied the claim and the
Workers' Compensation Board upheld the denial on the
basis that claimant had failed to prove the existence of the
disc "protrusions" condition. The board relied on
the opinion of a physician who had examined claimant and had
concluded that she suffered from degenerative disc
"bulges, " which the physician explained was a
different condition than disc "protrusions."
new or omitted condition claim, a claimant must prove the
existence of the condition for which compensation is sought,
but the claimant need not prove a particular diagnosis.
However, the scope of a new or omitted condition claim is a
question of fact that we review for substantial evidence.
Here, substantial evidence supports the board's findings
that claimant suffers from a condition of disc
"bulges" that is not equivalent to a condition of
disc "protrusions, " and that claimant's
existing disc condition is not within the scope of her claim
for acceptance of a new or omitted condition of "disc
Or.App. 733] FLYNN, J. pro tempore.
seeks review of an order of the Workers' Compensation
Board that upheld employer's denials of her claim that
employer add to her accepted 2012 injury claim the new or
omitted condition of disc "protrusions" in the
thoracic spine. The board adopted the determination of the
Administrative Law Judge (ALJ) that claimant's undisputed
disc pathology of the thoracic spine was a degenerative disc
"bulges" condition that is not
"equivalent" to disc "protrusions, " and
that claimant, therefore, failed to prove the existence of
the claimed condition. Claimant argues that the board erred
in relying on the diagnosis for the bulge condition as the
basis for upholding employer's denials. We conclude,
however, that the board found as a factual matter that the
diagnoses describe distinct conditions and that the
"disc bulge" condition from which claimant suffers
is not encompassed within the scope of her claim for a new or
omitted condition of "disc protrusions." We also
conclude that those findings are supported by substantial
evidence and, accordingly, affirm.
historical facts are not in dispute and are taken from the
board's findings. Claimant has been employed by Fred Meyer
(employer) for more than 13 years as a bakery manager. In
2001, employer accepted a claim for a nondisabling thoracic
strain. Claimant sporadically sought treatment for thoracic
pain over the next decade, but, just before the 2012 injury
incident, claimant's back was "fine." The
compensable injury at issue here arose from lifting incidents
on the day before Thanksgiving, 2012. First, claimant was
stacking items when she felt a sharp pain in her mid-back.
Then, later that day, claimant was lifting cases of pumpkin
pies when she felt upper thoracic symptoms. Employer accepted
the claim for a disabling thoracic strain.
Or.App. 734] Three months after the injury, claimant's
treating doctor, Bolstad, ordered a thoracic MRI that showed
what the radiologist described as "disc
protrusions" at three of claimant's thoracic discs:
"mild" and "slight" protrusions at T6-7
and T8-9, and a "moderate" protrusion at T7-8.
Claimant submitted a claim for a "new or omitted medical
condition" of "T-6 disc protrusion [and] T-7-8 disc
protrusion with cord compression [and] T-8-9 disc
protrusion." Employer denied the claim, and claimant
requested a hearing. The ALJ upheld employer's denial on
the ground that claimant had not proven the existence of the