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In re Compensation of Carter

Court of Appeals of Oregon

July 3, 2019

In the Matter of the Compensation of Dana Carter, Claimant.
v.
WASTE MANAGEMENT DISPOSAL SERVICES OF OREGON, Respondent. Dana CARTER, Petitioner,

          Argued and submitted May 30, 2019

          Workers' Compensation Board 1505744

          Julene M. Quinn argued the cause and fled the briefs for petitioner.

          Vera Langer argued the cause for respondent. Also on the brief was Lyons Lederer, LLP.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Affirmed.

         Case 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.

         [298 Or.App. 431] JAMES, J.

         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 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.

         Claimant 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.

         Claimant 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 the MRI.

         Employer 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 lumbar strain.

         Claimant 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.

         On 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 ...


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