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In re Compensation of Simi

Court of Appeals of Oregon

October 30, 2019

In the Matter of the Compensation of Randy G. Simi, Claimant. Randy G. SIMI, Petitioner,
v.
LTI INC. - LYNDEN INC., Respondent.

          Argued and submitted February 5, 2018.

          Workers' Compensation Board 1504870

          Ronald A. Fontana argued the cause for petitioner. Also on the brief was Ronald A. Fontana, PC.

          Rebecca A. Watkins argued the cause for respondent. Also on the brief was Sather, Byerly & Holloway, LLP.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Claimant seeks review of an order of the Workers' Compensation Board holding that his occupational disease claim for a shoulder condition under ORS 656.802(109a)(C) (describing an occupational disease arising out of "any series of traumatic events or occurrences"), based on the cumulative effect of multiple work injuries, is not compensable. Claimant contends that the board erred in determining that claimant was required to establish that the condition was caused by claimant's "general work activities." Held: Work-related injuries are employment conditions to be considered in determining the compenstability of an occupational disease, and the board erred in imposing the additional requirement that claimant establish that the claimed occupational disease was caused by "general work activities."

          [300 Or.App.259] HADLOCK, P. J.

         Claimant, who, over the years, has suffered multiple work-related injuries to his right shoulder, filed an occupational disease claim under ORS 656.802(1)(a)(C), [1]seeking compensation for treatment that he contends was necessitated by the cumulative effects of his work-related injuries. He seeks judicial review of an order of the Workers' Compensation Board upholding employer's denial of the claim based on the board's determination that it was not persuaded that claimant's "general work activities" had contributed to claimant's condition. Because the board erred in concluding that the claim could be compensable only by proof of a contribution from "general work activities," we reverse the board's order and remand for reconsideration.

         Claimant worked for many years as a truck driver. In 2001 and 2004, while working for different employers, claimant suffered work-related injuries to his shoulder, including a right shoulder partial labral tear and partial rotator cuff tear. Claimant worked for employer as a milk truck driver from 2005 through May 2014. His work required him to drive a semi truck, carry heavy hoses (including while climbing ladders), lift, carry, install and remove heavy tire chains, and scrub and rinse the tops of dairy tanks.

         Claimant experienced three shoulder injuries while working for employer. In 2010, he slipped and fell, injuring his shoulder, and employer accepted a claim for a right rotator cuff tear, for which claimant had surgery. In 2013, claimant slipped on a ladder and briefly hung by his arms. Claimant submitted a claim, which employer denied as untimely. In February 2014, claimant experienced increased shoulder pain and weakness when, over three snowy days, he repeatedly installed and removed heavy tire chains. When the pain became intolerable six weeks later, claimant sought medical treatment and submitted an injury claim, which employer denied.

         [300 Or. App.260] In 2015, claimant experienced increased shoulder pain and sought treatment from Dr. Butters, an orthopedic surgeon, who diagnosed a recurrent right rotator cuff tear and biceps tendon dislocation, and performed arthroscopic surgery. Butters opined that claimant's occupational exposure was the major contributing cause of his right shoulder tear, biceps tendon dislocation, and need for surgery. Claimant filed the occupational disease claim at issue here, seeking compensation for his right shoulder conditions.

         Employer had claimant examined by Dr. Swanson, who opined that "there is no valid evidence that any of the current diagnoses in [claimant's] right shoulder are due to work." Based on Swanson's opinion, employer denied the claim.

         In an apparent shift from his earlier opinion, Butters expressed in a concurrence report that claimant's occupational exposures were not the major contributing cause of his shoulder conditions and need for treatment. Butters wrote that "injury to the right shoulder if present would be the cause of the recurrent tear * * * not occupational disease." Butters said, "this person's job every day to me doesn't qualify it to be an occupational disease for his shoulder but injury does."

         Butters later explained more fully that, although he did not think that claimant's daily work activities would have caused the condition, claimant's injuries at work were the major contributing cause of his current condition requiring surgery. Butters testified that the 2013 injury was the major contributing cause of the worsening of claimant's previous pathology and need for surgical repair, but that each of claimant's work injuries, as well as his tire-chaining activities in February 2014, contributed to the shoulder pathology and the need for treatment. Butters opined: ...


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