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In re Compensation of Fillinger

Court of Appeals of Oregon

February 14, 2018

In the Matter of the Compensation of Lawrence Fillinger, Claimant.
v.
THE BOEING CO., Respondent. Lawrence FILLINGER, Petitioner,

          Argued and submitted November 7, 2016

         Workers' Compensation Board 1401445

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          Jerald P. Keene argued the cause for respondent. With him on the brief was Oregon Workers' Compensation Institute, LLC.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Claimant seeks review of an order of the Workers' Compensation Board (the board) upholding employer's denial of his combined condition claim after the board determined that the medical evidence established that the accepted injury was no longer the major contributing cause of claimant's combined condition. Claimant contends that the board erred in failing also to require employer to show that the combined condition had changed since acceptance. Held: Evidence that claimant's accepted underlying compensable injury had resolved supported the board's finding that claimant's condition had changed such that employer could deny the combined condition claim.

         [290 Or. 188]

          EGAN, C. J.

         Claimant seeks review of an order of the Workers' Compensation Board upholding employer's denial of his combined condition claim. ORS 656.005(7)(a)(B) (defining claim). The board upheld the denial after determining that the medical evidence established that the accepted injury was no longer the major contributing cause of claimant's combined condition. Claimant contends that the board erred in failing also to require employer to show that the combined condition had changed since its acceptance. We conclude that the board did not err and that the board's order is supported by substantial evidence. ORS 183.482(8)(c). We therefore affirm.

         We draw our summary of the facts from the board's order, which adopted an order of the administrative law judge with slight modification. Claimant, who has an extensive history of chronic low back problems, was injured at work on December 12, 2013, when he lifted some parts and experienced a spasm in his left low back, with electric shocks into his lower left leg and his toes. Employer initially accepted a claim for a disabling lumbar strain. Claimant's attending physician, Dr. Fischer, opined that the work injury had caused a temporary symptomatic flare-up of claimant's preexisting degenerative disc disease. But Fischer also expressed the view that, as of January 14, 2014, the strain had resolved and the major contributing cause of claimant's symptoms and need for treatment was the preexisting degenerative disc disease.

         Relying on Fischer's opinion, on March 24, 2014, employer modified its acceptance to include a lumbar strain "combined with preexisting degenerative lumbar disc disease (effective December 12, 2013)." The next day, on March 25, 2014, employer denied the combined condition, explaining that "the otherwise compensable lumbar strain [had] ceased to be the major contributing cause of the need for treatment and disability of your combined condition and * * * the preexisting condition has become the major contributing cause."

         Claimant requested a hearing. In preparation for the hearing, employer requested that claimant see [290 Or. 189] Dr. Swartz, an orthopedic surgeon. After examining claimant and reviewing medical records, Swartz expressed the view that claimant's pain "involved the work injury worsening an L3-4 disc bulge, causing or increasing the bulge's impingement on the left L3 and L4 nerve roots [.]" Swartz stated that the work injury had not ceased to be the major contributing cause of claimant's symptoms. Fischer, in contrast, reiterated her view that the work injury had caused a minor lumbar strain that had initially combined with the preexisting degenerative disc disease to cause increased symptoms, but that the strain had resolved after about six weeks, after which time the preexisting condition was the major contributing cause of claimant's symptoms.

         The board upheld the denial, explaining that it was persuaded by Fischer's opinion that the work strain had resolved. The board held that employer had met its burden under ORS 656.262(6)(c), (7)(b), and ORS 656.266(2)(a) to show that the work strain was no longer the major contributing cause of claimant's symptoms, disability, and need for treatment of the combined condition.

         On judicial review, claimant does not dispute the board's finding that the accepted lumbar strain is no longer the major contributing cause of his symptoms or disability and need for treatment. But claimant nonetheless contends that the board erred in determining that employer had met its burden of proof. In claimant's view, in addition to establishing that the lumbar strain was no longer the major contributing cause of claimant's symptoms, employer was required to show that there had been a change in the combined ...


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