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In re Compensation of Harrison

Court of Appeals of Oregon

August 21, 2019

In the Matter of the Compensation of Michael Harrison, Claimant.
v.
Michael HARRISON, Respondent. SAIF CORPORATION and Central Oregon Truck Company, Petitioners,

          Argued and submitted February 15, 2018

          Workers' Compensation Board 1501839

          Julie Masters argued the cause and fled the briefs for petitioners.

          R. Adian Martin argued the cause and fled the brief for respondent.

          Before Hadlock, Presiding Judge, and Aoyagi, Judge, and Mooney, Judge.[*]

         Case Summary:

         SAIF seeks review of an order of the Workers' Compensation Board (board), which reversed SAIF's denial of claimant's combined condition claim. SAIF argues that the record lacks substantial evidence and reason to support the board's decision to accept the expert opinion of claimant's medical expert, Dr. Schwartz, over that of SAIF's medical expert because, in SAIF's view, Schwartz's opinion was based on an inaccurate understanding of the mechanism of claimant's injury, rendering his opinion unreliable. Held: The board did not err. The board acknowledged the inconsistencies in Schwartz's descriptions of the mechanism of injury, reconciled those inconsistencies, and explained why it found Schwartz's opinion to be more persuasive than that of SAIF's medical expert. The record, viewed as a whole, contained substantial evidence and reason to permit a reasonable person to accept Schwartz's causation opinion over that of SAIF's medical expert.

         Affirmed.

         [299 Or.App. 105] MOONEY, J.

         This is a "combined condition" workers' compensation case on judicial review from the Workers' Compensation Board (board). The primary issue before the board was whether claimant's preexisting knee condition combined with his otherwise compensable on-the-job knee injury in such a way as to render his claim uncompensable. On that question, the board was presented with conflicting expert medical opinions regarding the major contributing cause of the combined condition. In setting aside SAIF Corporation's (SAIF) decision to deny this claim, the board concluded, among other things, that SAIF did not carry its burden of proof. SAIF now seeks judicial review of the board's order that reversed its denial of the claim.

         SAIF acknowledges that it bore the burden of proof to establish that the work injury was not the major contributing cause of the combined condition and need for treatment. It argues primarily that the record lacks substantial evidence and reason to support the board's decision to accept the expert opinion of claimant's medical expert, Dr. Schwartz, over that of SAIF's medical expert because, in SAIF's view, Schwartz's opinion was based on an inaccurate understanding of the mechanism of claimant's injury, rendering his opinion unreliable. Claimant responds that the record was sufficient to support the board's decision. We agree with claimant and, therefore, affirm.

         We review legal issues for errors of law and factual issues for substantial evidence. ORS 183.482(8)(a), (c); SAIF v. Williams, 281 Or.App. 542, 543, 381 P.3d 955 (2016). "[Substantial evidence supports a finding when the record, viewed as a whole, permits a reasonable person to make the finding." Garcia v. Boise Cascade Corp., 309 Or. 292, 295, 787 P.2d 884 (1990). "As part of our review for substantial evidence, we also review the board's order for substantial reason-that is, we determine whether the board provided a rational explanation of how its factual findings lead to the legal conclusions on which the order is based." Arms v. SAIF, 268 Or.App. 761, 767, 343 P.3d 659 (2015).

         Generally, "an injury is compensable and arises out of and in the course of employment under ORS 656.005(7) [299 Or.App. 106] if the work is a material contributing cause of the injury." Coleman v. SAIF, 203 Or.App. 442, 446, 125 P.3d 845 (2005). The claimant carries the burden of proof. ORS 656.266(1). However, when an otherwise compensable injury combines with a preexisting condition to cause or prolong a disability or the need for treatment, the combined condition is compensable only if the otherwise compensable injury is the major contributing cause of the disability or need for treatment. ORS 656.005(7)(a)(B). Once a claimant establishes an otherwise compensable injury, the employer bears the burden of proof to establish that the otherwise compensable injury is not the major contributing cause of the disability or the need for treatment of the combined condition. ORS 656.266(2)(a).

         Here, SAIF does not dispute that claimant met his initial burden to establish an otherwise compensable injury. Rather, it contends only that the board erred in determining that SAIF had not met its own burden to prove that the work injury was not the major contributing cause of claimant's disability or need for treatment. ORS 656.266(2)(a).

         The historical facts concerning claimant's preexisting knee condition are not materially in dispute. In 1985, claimant injured his left knee in a dirt bike accident. In 1988, while working as a pipefitter, claimant injured his left knee in a work-related incident, filed a workers' compensation claim, and received medical and surgical treatment (arthroscopic surgery with debridement of a meniscus). After that, and continuing through 2013, claimant noticed occasional swelling and fluid in his left knee that sometimes caused him to limp and sometimes did not. His knee did not interfere with his work activities during that period.

         On May 14, 2014, claimant saw Brian Davis, PA-C (Physician Assistant-Certified), at Shasta Orthopedics for stiffness in his left knee accompanied by constant, gradually worsening, moderate pain. X-rays taken that day revealed severe left knee tricompartmental degenerative arthritic changes, with complete collapse of the medial compartment. Claimant was noted to have "slightly decreased" range of motion (ROM) and "normal" quadriceps strength at that visit. Treatment options ranging from conservative (oral pain medications, injectable therapy, moderate exercise) to [299 Or.App. 107] total knee arthroplasty (TKA or knee replacement) were discussed. Given claimant's "relative youth and manageable pain," Davis recommended "exhausting conservative treatments before proceeding with TKA." Claimant agreed with that recommendation and his knee was drained and injected with medicine that day. Claimant believed, based on his conversation with Davis, that, through conservative treatment methods, he could avoid a knee replacement for 10 years, until after he retired. He experienced eight to nine months of relief following that injection, at which point he scheduled another appointment at Shasta Orthopedics hoping for another injection. That appointment did not happen because of the intervening injury described below.

         Claimant's work injury occurred on February 20, 2015. While working as a truck driver for Central Oregon Truck Company (employer), he injured his left knee when he dropped down[1] from a load of sheetrock on the truck and his left knee locked or twisted, causing acute pain in that knee. Knee x-rays were ordered by the emergency room physician and those studies showed advanced degenerative changes without acute fractures or dislocations. At that point, claimant could "only flex the knee to probably about 100 and 160 degrees." Claimant was prescribed medication and a knee brace.

         Claimant had follow-up appointments with his primary care provider, Dolly Brooks, FNP (Family Nurse Practitioner). Brooks ordered an MRI, diagnosed a left knee injury, noted "decreased ROM" and weakness in the left knee, and thereafter authorized time loss. The MRI was read by a radiologist, who reported extensive degenerative tearing of the medial and lateral menisci, arthritic changes, chronic complete tearing of the anterior cruciate ligament (ACL), as well as some ganglion cysts at the posterior joint [299 Or.App. 108] capsule. Claimant was referred back to Shasta Orthopedics for further evaluation.

         Before claimant's next appointment at Shasta Orthopedics, he was evaluated (but not treated) by Dr. Dewing, an orthopedic surgeon retained by SAIF. Dewing reviewed medical records and interviewed and examined claimant. Although Dewing had a copy of the MRI report in the medical records he reviewed, he did not have the actual MRI images available to review and he did not review them. His diagnoses included preexisting arthritic conditions dating from 1988 to February 20, 2015. He also described "objective evidence by imaging," including arthritic and degenerative changes, ACL insufficiency, and effusion. He concluded that the knee injury was a "material contributing cause" for claimant's need for treatment and that his preexisting knee condition combined with that work injury "to cause or prolong the disability and need for treatment." However, Dewing also opined that the work injury of "02/20/15 [was] never the major contributing cause of the combined condition." He based that opinion on "the fact that there was ongoing treatment *** for the left knee[, ] *** extensive prior surgical treatment and findings consistent with ongoing symptoms from arthritic disease."

         On May 20, 2015, claimant was seen by Davis and Schwartz at Shasta Orthopedics. That visit consisted of an interview, physical examination, and review of Dewing's Independent Medical Evaluation (IME) report. They discussed treatment options, including a conservative approach using a "hinged range of motion brace" as well as TKA. Claimant ultimately elected for the TKA, which was performed by Schwartz in October 2015. Schwartz ...


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