McDermott v. SAIF

                                       310

       Submitted on remand November 26, 2019, reversed and remanded
                            February 20, 2020


               In the Matter of the Compensation of
                  Maurice McDermott, Claimant.
                      Maurice McDERMOTT,
                            Petitioner,
                                 v.
                      SAIF CORPORATION
                   and Industrial Diesel Power,
                           Respondents.
                   Workers’ Compensation Board
                        1403683; A160016
                                   

     In its original opinion, the Court of Appeals affirmed an order of the Workers’
Compensation Board (board) upholding SAIF’s award reducing claimant’s benefits for impairment by the percentage that medical arbiters attributed to a preexisting arthritis. Subsequently, the Supreme Court held in Caren v. Providence
Health System Oregon, 

, 

 (2019), that, unless the insurer
has identified and denied a combined condition by the time of claim closure, a
worker is entitled to benefits for the worker’s total impairment, if the work injury
is a material contributing cause of the worker’s total impairment. The Supreme
Court remanded this case to the Court of Appeals for reconsideration in light of
Caren. Held: In light of Caren, the board erred in apportioning claimant’s impairment, in the absence of SAIF’s identification and denial of a combined condition
involving preexisting arthritis before claim closure.
    Reversed and remanded.



   On remand from the Oregon Supreme Court, McDermott
v. SAIF, 

, 

 (2019).
    Joe Di Bartolomeo and Di Bartolomeo Law Office, P.C.,
filed the briefs for petitioner.
   David L. Runner argued the cause and filed the brief for
respondents.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
    DeVORE, P. J.
    Reversed and remanded.
Cite as 

 (2020)                              311

        DeVORE, P. J.
         This case is on remand to us from the Supreme
Court for reconsideration in light of the Supreme Court’s
opinion in Caren v. Providence Health System Oregon, 

, 

 (2019). Caren involved a workers’ compensation claim that the employer had accepted for “lumbar
strain.” At the time of claim closure, 50 percent of the claimant’s impairment was determined to be due to preexisting
arthritis. On reconsideration, medical arbiters opined that
70 percent of the claimant’s impairment was due to the preexisting arthritis, and the claimant’s permanent disability
award was apportioned, or reduced, accordingly. The claimant had not requested acceptance of a combined condition
and the employer had not accepted or denied a combined
condition.
         The Workers’ Compensation Board upheld the
apportionment, rejecting the claimant’s contention that she
was entitled to an award for her full impairment. On review,
we affirmed the board’s order without written opinion,
upholding an apportionment of benefits to reduce the claimant’s benefits for impairment by the impairment attributable to the preexisting condition, and citing our opinion
in McDermott v. SAIF, 

, 

(2017), rev’d, 

, 

 (2019).
         In McDermott, we had held that a worker’s benefits
for impairment at the time of claim closure could be apportioned, or reduced, by the percentage of impairment “due to”
the worker’s legally cognizable preexisting condition, unless
the preexisting condition had been claimed by the worker,
accepted by the employer as part of a combined condition,
and remained compensable at the time of closure. 

         The Supreme Court allowed review in Caren and
overruled our analysis in McDermott. Under the Supreme
Court’s analysis in Caren, the general rule is that, at claim
closure, a worker is entitled to benefits for the worker’s
total impairment, if the work injury is a material contributing cause of the worker’s total impairment. 

. That total impairment may include impairment due to
preexisting conditions that are not otherwise compensable.
As long as the work injury is a material contributing cause
312                                                  McDermott v. SAIF

of the worker’s total impairment, the total impairment is
compensable.
        However, there is an exception to that general rule
when a work injury has combined with a qualifying, legally
cognizable preexisting condition to cause impairment, and
the combined condition is not (or is no longer) compensable. Under that exception, benefits for impairment can be
reduced by the impairment caused by the combined condition only if the employer has identified the combined condition and denied it before claim closure. 

 It is not the
claimant’s burden to first seek acceptance of a combined
condition.1
         Here, the board upheld an apportionment (or reduction) of claimant’s benefits for impairment due to a preexisting condition, even though employer has not denied a
combined condition involving that preexisting condition.
Under Caren, that was not appropriate. We therefore reverse
and remand this case to the board for reconsideration in
light of Caren.
           Reversed and remanded.




    1
      We note that the Supreme Court’s opinion implicitly overrules our opinion
in Croman Corp. v. Serrano, 

, 

 (1999), in which
we held that the preclosure denial of a combined condition claim applies only to
an accepted combined condition claim.