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In re Compensation of Hammond

Court of Appeals of Oregon

February 27, 2019

In the Matter of the Compensation of Thomas J. Hammond, DCD, Claimant. Cheryl HAMMOND, surviving spouse, Petitioner,
v.
LIBERTY NORTHWEST INSURANCE CORPORATION and Columbia Grain, Inc., Respondents.

          Workers' Compensation Board 1302871

          Argued and submitted December 11, 2017

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

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

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

         Case Summary:

         Claimant, the surviving spouse of the injured worker, seeks review of an order of the Workers' Compensation Board holding that she is not entitled to benefits for a combined condition resulting in the worker's death, raising several assignments of error.

Held:

         The Court of Appeals rejected claimant's contention that the worker's cancerous femur tumor was not a preexisting condition as defied in ORS 656.005(24). The court further rejected claimant's contention that the analysis set forth in ORS 656.005(7)(a)(B) for combined condition claims does not apply to claims seeking benefits for death. Finally, the court rejected claimant's contention that the Supreme Court's opinion in Brown v. SAIF, 361 Or. 241, 391 P.3d 773 (2017), decided after the board's order, necessitates a different analysis in this combined condition claim than that applied by the board.

         [296 Or.App. 242] ARMSTRONG, P. J.

         Claimant, the surviving spouse of the injured worker, seeks review of an order of the Workers' Compensation Board holding that she is not entitled to death benefits. We conclude that the claim is not compensable, and we therefore affirm.

         The facts are largely undisputed. Claimant's spouse, Hammond, who was travelling for work, had been diagnosed with and was undergoing treatment for meta-static lung cancer that had spread to his bones, causing fractures. As Hammond walked through a hotel lobby, his left femur fractured due to weakness caused by the presence of the cancer in the bone. The medical evidence is undisputed that the metastatic lung cancer was the major contributing cause of the weakening. Hammond died seven days later.

         Employer denied claimant's claim for a left leg injury and death benefits, explaining that "[i]nformation obtained during this investigation fails to establish the left leg injury resulting in death is compensably related to a work injury or work exposure." Before the administrative law judge (AL J), claimant contended that, because Hammond was travelling for work, any injury sustained during the travel was compensably related to his employment. Employer took the position that Hammond's leg fracture was idiopathic and not materially related to his work. But, assuming that claimant was able to establish that the fracture was an "otherwise compensable condition" that had a material relationship to the employment, employer contended that the major contributing cause of Hammond's fracture was his preexisting cancer. The ALJ upheld the denial, reasoning, alternatively, that the cancer was a preexisting condition that was the major contributing cause of claimant's death, or that Hammond's fracture was idiopathic and did not arise out of his employment.

         The board did not address employer's contention or the ALJ's conclusion that the fracture was idiopathic. Instead, the board analyzed the injury claim as a combined [296 Or.App. 243] condition under ORS 656.005(7)(a)(B).[1] The board reasoned as follows: Because Hammond was a travelling employee, his walking through the hotel lobby arose out of his employment. The board then cited medical evidence that the fracture was caused by claimant's bearing weight while walking that immediately combined with the cancerous tumor. The board found that the weight bearing was a material contributing cause of Hammond's fracture, which the board therefore characterized as an "otherwise compensa-ble injury." But, finding that the cancer was a preexisting condition under ORS 656.005(24) and that the preexisting cancer was the major contributing cause of the fracture, the board determined that claimant had failed to meet her ...


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