In the Matter of the Compensation of David D. Dunn, Claimant.
David D. DUNN, Respondent. SAIF CORPORATION and PeaceHealth Corp - Sacred Heart Medical Center, Petitioners,
and submitted January 31, 2018
Workers' Compensation Board 1501866
L. Runner argued the cause and fled the briefs for
C. Johnson argued the cause and fled the brief for
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: SAIF seeks judicial review of an order of the
Workers' Compensation Board holding that claimant's
congenital condition in his foot known as "unfused
apophysis" is not a "preexisting condition"
within the meaning of ORS 656.005(24) to be considered in
determining the compensability of claimant's inflammatory
condition known as "apophysitis." Held: In
the occupational disease context, susceptibilities that do
not actively contribute to the cause of a condition are not
to be weighed in determining major contributing cause.
Whether a claimant's condition constitutes a mere
susceptibility or predisposition because it only increased
the likelihood of claimant developing apophysitis and did not
actively contribute to the cause of the inflammation is a
medical question. The medical evidence on which the board
relied contains an unresolved internal inconsistency on that
issue that prevents the board's order from being
supported by substantial evidence.
Or.App. 207] ARMSTRONG, P. J.
petition for judicial review, we are asked to address whether
the Workers' Compensation Board erred in determining that
claimant's congenital bone condition in his foot known as
"unfused apophysis" was not a "preexisting
condition," within the meaning of ORS 656.005(24), to be
considered in determining the cause of claimant's
inflammatory condition known as "apophysitis."
Reviewing the board's order for substantial evidence and
legal error, ORS 656.298; ORS 183.482(7), (8), we conclude
that the board did err, and we therefore reverse and remand
the board's order for reconsideration.
we set out some relevant legal context. This case presents an
issue of statutory construction relating to preexisting
conditions in occupational disease claims. ORS 656.802
defines "occupational disease" and also states that
preexisting conditions are "deemed causes in determining
major contributing cause":
"(1)(a) As used in this chapter, 'occupational
disease' means any disease or infection arising out of
and in the course of employment caused by substances or
activities to which an employee is not ordinarily subjected
or exposed other than during a period of regular actual
employment therein, and which requires medical services or
results in disability or death[.]
''* * * *
"(2)(a) The worker must prove that employment conditions
were the major contributing cause of the disease.
''* * * *
"(e) Preexisting conditions shall be deemed causes in
determining major contributing cause under this
656.005(24), in turn, defines "preexisting
condition" for both injury and occupational disease
"(24)(a) 'Preexisting condition' means, for all
industrial injury claims, any injury, disease, congenital
abnormality, personality disorder or similar condition that
contributes to disability or need for treatment, provided
[297 Or.App. 208]"(A) Except for claims in which a
preexisting condition is arthritis or an arthritic condition,
the worker has been diagnosed with such condition, or has
obtained medical services for the symptoms of the condition
regardless of diagnosis; and
"(B)(i) In claims for an initial injury or omitted
condition, the diagnosis or treatment precedes the initial
"(ii) In claims for a new medical condition, the
diagnosis or treatment precedes the onset of the new ...