Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Compensation of DeBoard

Court of Appeals of Oregon

May 16, 2018

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

          Argued 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 respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case 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 Supreme Court.

         Reversed and remanded.

          [291 Or.App. 743] ARMSTRONG, P. J.

         Although 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.

         The 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.

         Claimant, 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.

         While 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 protrusion.

         Employer 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.

         Dr. 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.