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In re Compensation of Dunn

Court of Appeals of Oregon

April 24, 2019

In the Matter of the Compensation of David D. Dunn, Claimant.
v.
David D. DUNN, Respondent. SAIF CORPORATION and PeaceHealth Corp - Sacred Heart Medical Center, Petitioners,

          Argued and submitted January 31, 2018

          Workers' Compensation Board 1501866

          David L. Runner argued the cause and fled the briefs for petitioners.

          Dale C. Johnson argued the cause and fled the brief for respondent.

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

         Case 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.

         Reversed and remanded.

         [297 Or.App. 207] ARMSTRONG, P. J.

         In this 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.

         Initially, 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 section."

         ORS 656.005(24), in turn, defines "preexisting condition" for both injury and occupational disease claims:

"(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 that:
[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 injury;
"(ii) In claims for a new medical condition, the diagnosis or treatment precedes the onset of the new ...

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