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In re Compensation of Miller

Court of Appeals of Oregon

July 25, 2018

In the Matter of the Compensation of Jeffery L. Miller, Claimant.
v.
SAIF CORPORATION and Bennett Management, LLC, Respondents. Jeffery L. MILLER, Petitioner,

          Argued and submitted November 2, 2016

          Workers' Compensation Board 1304207;

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

          David L. Runner argued the cause and fled the brief for respondents.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         Case Summary:

         Claimant seeks review of an order of the Workers' Compensation Board. Claimant assigns error to the board's decision to analyze the compensability of his right shoulder condition using an occupational-disease analysis and not also an accidental-injury analysis. Claimant argues that the medical evidence supported the existence of two claims-a degenerative condition that qualifed as an occupational disease and acute tearing of the tendons that qualifed as an accidental injury. Held: The board did not err. To determine whether the medical evidence supported the existence of an accidental injury, the relevant inquiry was whether the condition developed during a discrete, iden-tifable period. On review, substantial evidence supported the board's implicit fnding that claimant's shoulder condition developed gradually over time and not during a discrete period. Accordingly, the board did not err in its conclusion that an accidental-injury analysis did not apply to claimant's condition.

         [293 Or.App. 75] GARRETT, J.

         Claimant seeks review of an order of the Workers' Compensation Board concluding that his shoulder condition is compensable as an occupational disease and not also as an accidental injury. For the reasons that follow, we conclude that substantial evidence supports the board's finding that claimant's shoulder condition developed gradually and, therefore, that the board did not err by analyzing com-pensability using only an occupational-disease analysis. Accordingly, we affirm.

         We review the board's order for substantial evidence and legal error, ORS 656.298(7); ORS 183.482(8), and for substantial reason, SAIF v. Martinez, 219 Or.App. 182, 184, 182 P.3d 873 (2008). "We state the facts consistently with the board's unchallenged factual findings." SAIF v. Durant, 271 Or.App. 216, 218, 350 P.3d 489 (2015), rev den, 358 Or. 69 (2015).

         Claimant is a maintenance worker in apartment buildings, and his employer is insured by respondent SAIF. His previous jobs included employment as an apprentice and journeyman sheet-metal worker, during which he spent three to four years performing overhead work between 70 and 80 percent of the time.

         One day, while locking an apartment door, claimant developed pain and "heard and felt a pop in [his] right shoulder." He sought treatment the same day and reported that he had experienced some soreness in his shoulder for the previous two weeks, but that he did not otherwise have any right shoulder issues. A physician interpreted an MRI of claimant's shoulder to show "full thickness tears" in two of claimant's right rotator cuff tendons, among other physiological abnormalities in his shoulder. He soon began physical therapy targeted at his right shoulder, and his orthopedist recommended rotator cuff repair surgery.

         Claimant filed two claims for workers' compensation benefits for his right shoulder. He first filed an accidental-injury claim for a "right shoulder injury," which SAIF denied. Six months later, claimant filed an occupational-disease claim for a "right rotator cuff tear and right subscapularis [293 Or.App. 76] tear," which SAIF also denied. Following the second denial, claimant requested a hearing. The claims were consolidated for a hearing before an administrative law judge (AL J).

         Before the ALJ, SAIF argued that claimant had a preexisting arthritic shoulder condition that combined with the work incident and that the work incident was not a "major contributing cause of the need for treatment of the combined condition." See ORS 656.005(7)(a)(B) (providing that, if an "otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition" or "the need for treatment of the combined condition"). SAIF relied on the opinion of Dr. Toal, who opined that claimant's treatment had primarily been for "preexisting rotator cuff disease," and that an arthritic bone spur had caused "gradual wear and tear of th[e] [supraspinatus] tendon eventually leading ...


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