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In re Compensation of Deboard

Court of Appeals of Oregon

May 24, 2017

In the Matter of the Compensation of Barbara J. DeBoard, Claimant.
v.
FRED MEYER, Respondent. Barbara J. DeBOARD, aka Barbie J. DeBoard, Petitioner,

          Argued and submitted November 3, 2015

         Workers' Compensation Board 1302758

          Christopher D. Moore argued the cause and fled the briefs for petitioner.

          Rebecca A. Watkins argued the cause for respondent. With her on the brief was Sather, Byerly & Holloway, LLP.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge pro tempore.

         Case Summary:

         Claimant 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."

         Held:

         For a 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 protrusions."

         Affirmed.

         [285 Or.App. 733] FLYNN, J. pro tempore.

         Claimant 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.[1]

         The historical facts are not in dispute and are taken from the board's findings.[2] 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.

         [285 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."[3] Employer denied the claim, and claimant requested a hearing.[4] The ALJ upheld employer's denial on the ground that claimant had not proven the existence of the ...


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