In the Matter of the Compensation of Barbara J. DeBoard, Claimant.
Barbara J. DeBOARD, Respondent. FRED MEYER STORES, INC., Petitioner,
and submitted October 10, 2016
Workers' Compensation Board 1403132
Rebecca A. Watkins argued the cause for petitioner. With her
on the briefs was Sather, Byerly & Holloway, LLP.
Christopher D. Moore argued the cause and fled the brief for
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Employer seeks review of an order of the
Workers' Compensation Board upholding the compensability
of claimant's claim for disc bulges, contending that the
determination is precluded or, in the alternative, that the
order is not supported by substantial evidence.
Held: In analyzing claimant's claim, the board
cited and appeared to rely on Brown v. SAIF, 262
Or.App. 640, 325 P.3d 834 (2014), rev'd, 361 Or.
241, 391 P.3d 773 (2017), which has been reversed by the
Supreme Court. The case is therefore reversed and remanded
for reconsideration under the standard described by the
Or.App. 743] ARMSTRONG, P. J.
this workers' compensation case does not involve angels
dancing on pin heads, it does involve dancing around medical
terms and an emphasis on hyper-technicality that has
unnecessarily delayed the resolution of what should have been
a straight-forward new/omitted medical condition claim. And,
unfortunately, in light of a change in the law since the
board's order, we must once again extend this litigation
by remanding the case for reconsideration.
largely undisputed facts were described in our recent opinion
involving an earlier claim by this same claimant, DeBoard
v. Fred Meyer, 285 Or.App. 732, 397 P.3d 37, rev
den, 361 Or. 885 (2017), and we summarize them here only
as necessary for an understanding of the issues on review.
who has worked for employer as a baker for 12 years, has a
history of back injuries. In November 2012, claimant
experienced acute pain in her mid-back while moving trays of
bread and sought medical treatment. Employer accepted a claim
for a disabling thoracic strain.
the claim was still open, claimant had an MRI that a
radiologist read to show a mild central T6-7 disc
"protrusion" with mild spinal cord compression, a
moderate right paracentral T7-8 disc "protrusion"
with moderate spinal cord compression, and a slight right
paracentral T8-9 disc "protrusion" with no spinal
cord compression. Claimant filed a new/omitted medical
condition claim, asking employer to accept a T6 disc
protrusion, a T7-8 disc protrusion, and a T8-9 disc
denied the claim, and claimant requested a hearing. The
medical evidence is undisputed that claimant suffers from a
degenerative condition in three thoracic disc levels of her
back. But medical experts offered differing views on the
cause of claimant's degenerative disc condition, which
they varyingly described as thoracic spondylosis, disc
"protrusions" or disc "bulges." Dr.
Arbeene, an orthopedic surgeon who examined claimant at
employer's request, shared his view that, although
doctors use the terms interchangeably,
"protrusions" and "bulges" are
technically different conditions, and that claimant's MRI
was consistent with [291 Or.App. 744] "bulges"
rather than "protrusions." Arbeene also expressed
the view that, although claimant's work might have
contributed to her symptoms, the major contributing cause of
the disc bulges was a degenerative process in claimant's
back that was not work related. In July 2013, Arbeene
concurred in a statement by employer's attorney that
"[t]he disc protrusions and spondylosis have developed
gradually over time and are not related to a specific
identifiable event or injury." Arbeene later stated
that, if he asked five doctors what they meant by "disc
bulge" or "disc protrusion, " he might get
five different answers. He acknowledged that
"bulge" and "protrusion" both describe
abnormal disc pathology and "more often than not"
are used interchangeably.
Bolstad, claimant's treating physician, used the terms
"bulge" and "protrusion" interchangeably
and stated that claimant's disc "protrusions"
were caused by her work activities. Bolstad attributed
claimant's need for treatment of ...