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In re Compensation of Graham

Court of Appeals of Oregon

August 29, 2018

In the Matter of the Compensation of Jason L. Graham, Claimant. Jason L. GRAHAM, Petitioner,
v.
LIBERTY NORTHWEST INSURANCE CORPORATION and RLK & Company, Respondents.

          Argued and submitted April 4, 2017

          Workers' Compensation Board 1501007;

          Jodie Anne Phillips Polich argued the cause and fled the briefs for petitioner.

          Carrie Wipplinger argued the cause and fled the brief for respondents.

          Before DeHoog, Presiding Judge, and Hadlock, Judge, and Schuman, Senior Judge.

         Case Summary: Claimant seeks judicial review of an order of the Workers' Compensation Board upholding insurer Liberty Northwest Insurance Corporation's denial of a medical services claim for a prescription medication known as Gralise, contending that the board erred because the medical evidence shows that the Gralise was prescribed for claimant's compensable disc herniation. Held: Substantial evidence supports the board's finding that the Gralise was prescribed for nerve pain caused by denied conditions of radiculitis, post-lami-nectomy syndrome, and neurofbrosis, rather than for the compensable disc herniation. The board therefore did not err in upholding Liberty's denial.

         Affirmed.

         [293 Or.App. 530] HADLOCK, J.

         Claimant seeks judicial review of an order of the Workers' Compensation Board upholding Liberty Northwest Insurance Corporation's denial of his medical services claim for a prescription medication known as Gralise. Liberty denied the claim for the reason that Gralise was not prescribed for treatment of claimant's compensable disc herniation but rather was directed to denied conditions of radiculitis, post-laminectomy syndrome, and neurofibrosis. Claimant contends that the board erred, because the medical evidence shows that the Gralise is also prescribed for the compensable disc herniation. We review the board's order for substantial evidence and errors of law, ORS 183.482(8)(a), (c), conclude that the board did not err, and affirm.

         Claimant has a history of non-work-related low-back conditions and surgeries. In 2003, claimant had a 1aminectomy surgery for a large central and right-sided disc herniation at the L5-S1 level. Claimant sought medical care in January 2011 for hip and back pain, with numbness, tingling, and muscle spasms in the right leg. In March 2011, claimant had a second surgery at L5-S1, to address scarring with severe compression of the SI nerve root, related to the previous laminectomy Claimant believed that the second surgery improved his symptoms by 50 percent. Claimant's pain level continued to diminish with physical therapy.

         In May 2011, claimant slipped on ice at work and twisted his back. The severity of claimant's pain returned, along with weakness, and he filed an injury claim. Claimant's physician diagnosed "recurrent L5-S1 disc protrusion on the right as a result of an on-the-job injury[.]" Claimant had a third surgery in late May 2011, to address continued scarring and to remove additional disc fragments.

         Liberty denied a claim for compensation, but, after a hearing, an administrative law judge determined that the need for the third surgery was work-related, and Liberty notified claimant of its acceptance of a claim for "recurrent disc herniation at L5-S1." Liberty later modified its notice of acceptance to describe acceptance of "a recurrent herniated [293 Or.App. 531] disc at L5-S1 combined with preexisting, noncompensable, degenerative disc disease." Claimant subsequently sought acceptance of new medical conditions-radiculitis, post-lam-inectomy syndrome, and neurofibrosis-as a part of his claim. In January 2013, Liberty issued a "ceases denial" with respect to the May 2011 claim.[1] In April 2013, the parties entered a stipulation through which claimant withdrew his new medical condition claims in exchange for Liberty's withdrawal of the modified notice of acceptance. The end result was that the claim for recurrent disc herniation at L5-S1 remained accepted.

         In July 2013, claimant again requested acceptance of radiculitis, post-laminectomy syndrome, and neurofibrosis as new medical conditions. The claim for those conditions was resolved through a disputed claim settlement (DCS) that awarded claimant a lump sum of $10, 000 in exchange for claimant's stipulation to a denial of the new medical conditions. The DCS, which the board approved, included the statement of Liberty's position that

"claimant's conditions of a right SI radiculitis, post-laminectomy syndrome, neurofibrosis, and need for medical treatment and disability are not, in any way or degree of contribution, the result or consequence of claimant's on the job injury of May 4, 2011 ***. The conditions denied as noted above and the need for medical treatment are due to non-compensable, preexisting ...

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