In the Matter of the Compensation of Dana Carter, Claimant.
WASTE MANAGEMENT DISPOSAL SERVICES OF OREGON, Respondent. Dana CARTER, Petitioner,
and submitted May 30, 2019
Workers' Compensation Board 1505744
M. Quinn argued the cause and fled the briefs for petitioner.
Langer argued the cause for respondent. Also on the brief was
Lyons Lederer, LLP.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Claimant seeks judicial review after the
Workers' Compensation Board upheld employer's denial
of his aggravation claim. On review, claimant argues that the
board applied the wrong legal standard to determine
compensability: Rather than assessing the persuasiveness of
the competing medical opinions, the board applied a per
se rule that the opinion of a claimant's treating
physician is insuffcient to establish compensability unless
that opinion specifically responds to or rebuts the opinion
of the physician who conducted an independent medical
examination. Held: Although claimant was correct
that a per se rule requiring a rebuttal report is
inconsistent with the statutory standard for compensability,
the board's order did not state a per se rule.
The board concluded that rebuttal was necessary as a matter
of factual persuasiveness, not legal sufficiency.
Or.App. 431] JAMES, J.
seeks judicial review after the Workers' Compensation
Board upheld employer's denial of his aggravation claim.
On review, claimant argues that the board applied the wrong
legal standard to determine compensability: Rather than
assessing the persuasiveness of the competing medical
opinions, the board applied a per se rule that the
opinion of a claimant's treating physician is
insufficient to establish compensability unless that opinion
specifically responds to or rebuts the opinion of the
physician who conducted an independent medical examination
(IME). In claimant's view, the board's use of that
per se rule effectively raised the standard of proof
beyond the statutorily imposed preponderance-of-the-evidence
standard. Although we agree with claimant that such a per
se rule is inconsistent with the statutory scheme, we
are not persuaded that the board applied such a rule in this
case. Accordingly, we affirm.
was injured at work in June 2013 while moving a pipe, and
employer's claims administrator accepted his claim for a
lumbosacral sprain/strain. Thereafter, Dr. Armerding became
claimant's treating physician, and Armerding declared
claimant medically stationary in January 2014. Claimant
returned to Armerding in September 2015, reporting
recurrences of pain that had severely limited his ability to
function at home or at work. Armerding assessed a lumbosacral
strain and indicated that the pattern suggested facet joint
dysfunction with secondary pain and spasm, and could
represent intermittent spinal root irritation or impingement
from disc pathology or other source.
and Armerding completed a form for reporting
"aggravation of original injury," and claimant was
released for light-duty work and referred for an MRI scan.
The MRI revealed moderate disc protrusions at L2-3 and L3-4,
and claimant returned to Armerding on September 23, reporting
that September had been his worst month ever in terms of back
pain. Armerding continued to assess a lumbosacral strain and
opined that claimant's work activities over the preceding
eight years, including the "acute sprain/ [298 Or.App.
432] strain injury of 2013," were a material cause of
the facet joint arthrosis and degenerative changes seen on
requested an IME, which was performed by Dr. Laycoe, an
orthopedic surgeon. Laycoe diagnosed a lumbosacral
sprain/strain related to the June 2013 incident and
degenerative disc disease at L1-2, L2-3, and L3-4, with mild
facet joint arthritis at L3-4 and L4-5, and secondary disc
protrusions at L2-3 and L3-4. Laycoe opined that claimant had
a combined condition of the lumbar strain from June 2013 and
a preexisting arthritic condition of degenerative disc
disease with facet arthritis. He further opined that
claimant's symptoms in 2014 and 2015 were due to the
degenerative disc disease and facet arthritis, not the low
returned to Armerding on October 21, 2015, again reporting
that his back pain over the preceding two to three months had
been the worst and most prolonged since his workplace injury.
Armerding assessed a lumbosacral ligament strain and
continued claimant's light duty work restrictions.
October 27, 2015, employer's claims processor issued a
denial of aggravation of claimant's accepted sprain/
strain condition, asserting that claimant had not sustained a
worsening of his injury from June 2013. Claimant requested ...