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In re Compensation of Griffn

Court of Appeals of Oregon

February 27, 2019

In the Matter of the Compensation of Jason C. Griffn, Claimant.
v.
DISH NETWORK SERVICES, Respondent. Jason C. GRIFFIN, Petitioner,

          Argued and submitted November 8, 2017

          Workers' Compensation Board 1305593

          Donald M. Hooton argued the cause and fled the briefs for petitioner.

          Jason A. McClain argued the cause for respondent. Also on the brief was Thomas P. Busch.

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

         Case Summary:

         Claimant seeks review of an order of the Workers' Compensation Board on reconsideration upholding a notice of closure on an accepted claim for "lumbar strain" that awarded claimant temporary disability benefits but no benefits for permanent impairment or work disability, contending that a prior final order of the board had determined that claimant had a com-pensable combined condition that is subject to rating for impairment.

         Held:

         The board reasonably interpreted its prior order as a mere rejection of employer's defense that claimant's symptoms and need for treatment were caused in major part by a preexisting condition, not a determination that claimant had a com-pensable combined condition. Additionally, the medical evidence supports the board's alternative fending that, even if employer's acceptance were understood to encompass a combined condition, there is zero permanent impairment as a result of that condition.

         [296 Or.App. 234] ARMSTRONG, P. J.

         In this workers' compensation case, claimant seeks review of an order of the Workers' Compensation Board on reconsideration upholding a notice of closure that awarded claimant temporary disability benefits but no benefits for permanent impairment or work disability. We conclude that the board's order is supported by substantial evidence and that the board did not err as a matter of law in upholding the notice of closure. ORS 656.298; ORS 183.482(7), (8).

         We summarize the board's findings, which are largely undisputed and are supported by substantial evidence. Claimant has a lengthy pre-employment history of low back problems, including diagnoses of degenerative disc disease, disc herniations and protrusions at L4-5 and L5-S1, pain radiating into his legs, and surgery at L4-5.

         Claimant installs satellite dishes for employer and, on February 27, 2011, while adjusting his position to support a satellite dish, claimant twisted his back and felt pain. He filed a claim, in which he described the injury as "low back strain." Employer denied the claim for the reason that the "primary contributing cause" of claimant's need for treatment or disability was his preexisting back condition, asserting, essentially, a "combined condition defense."

         We summarize briefly the relevant legal context for the issue raised on review. Ordinarily, it is the claimant's burden to prove the compensability of a claim. ORS 656.266(1) ("The burden of proving that an injury * * * is compensable * * * is upon the worker."). When a "combined condition" is asserted, either by the claimant or by the employer, special burdens of proof apply in determining the initial compensability of the claim. If the claimant seeks to establish the compensability of a claim as a combined condition in the first instance, then it is the claimant's burden to establish the existence of an "otherwise compensable condition" that has combined with a preexisting condition "to cause or prolong disability or a need for treatment." ORS 656.005(7)(a)(B). If the claimant meets that initial burden and the employer disputes the compensability of the combined condition, then the employer must establish that the "otherwise compensable condition" is not the major contributing cause of the [296 Or.App. 235] claimant's disability or need for treatment. McDermott v. SAIF,286 Or.App. 406, 419, 398 P.3d 964 (2017); Keystone RV Co.-Thor Industries, Inc. v. Erickson,277 Or.App. 631, 373 P.3d 1122 (2016). If the "combined condition" is raised by the employer as a defense to the claim, then the claimant bears the initial burden to establish an "otherwise compensable injury" by proof that a work injury is a material contributing cause of the ...


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