233
Argued and submitted September 5, 2019, affirmed May 13, 2020
In the Matter of the Compensation of
David M. Williams, Claimant.
SAIF CORPORATION
and Baker County School District #61,
Petitioners,
v.
David M. WILLIAMS,
Respondent.
Workers’ Compensation Board
1200237; A167310
466 P3d 1052
Petitioners, SAIF Corporation and Baker County School District #61, seek
review of an order of the Workers’ Compensation Board (board), which reversed
SAIF’s denial of claimant’s new or omitted medical condition claim. In SAIF v.
Williams, 281 Or App 542,
381 P3d 955 (2016) (Williams I), the Court of Appeals
vacated and remanded the board’s order, which had concluded that claimant
established the compensability of a “new medical or omitted medical condition”
claim under ORS 656.267. On remand, the board reconsidered claimant’s claim
and once again concluded that he had established the compensability of a new or
omitted medical condition. In this appeal, SAIF argues that the board erred by
(1) finding medical causation contrary to the law of the case and without substantial evidence and substantial reason and (2) applying an incorrect legal standard
for determining the compensability of claimant’s new or omitted medical condition claim. Held: The board did not err. With regard to SAIF’s first assignment
of error, the Court of Appeals concluded that the board appropriately conformed
to its remand instructions in Williams I, that the board’s findings and conclusions were supported by the record, and that the board adequately explained
its conclusions. With regard to SAIF’s second assignment of error, SAIF did not
preserve its argument because, by raising it first in its reply brief upon remand
from Williams I, it did not provide claimant with a meaningful opportunity to
respond to it.
Affirmed.
David L. Runner argued the cause and filed the briefs for
petitioners.
Julene M. Quinn argued the cause and filed the brief for
respondent.
234 SAIF v. Williams
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
MOONEY, J.
Affirmed.
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 304 Or App 233 (2020) 235
MOONEY, J.
Petitioners, SAIF Corporation and Baker County
School District #61, appeal, for the second time in the life
of this case, an order of the Workers’ Compensation Board
(Board). In the first of petitioners’ appeals, we vacated and
remanded the board’s order, which had concluded that
claimant established the compensability of a “new medical
or omitted medical condition” under ORS 656.267 for a “thoracic spine Tarlov cyst.” SAIF v. Williams, 281 Or App 542,
543,
381 P3d 955 (2016) (Williams I). On remand, the board
reconsidered claimant’s claim in light of our decision and
once again concluded that claimant established the compensability of a new or omitted medical condition under ORS
656.267 for his thoracic spine Tarlov cyst. On review, petitioners argue that the board erred by (1) finding medical
causation contrary to the law of the case and without substantial evidence and substantial reason and (2) applying
an incorrect legal standard for determining the compensability of claimant’s new or omitted medical condition claim.
We reject petitioners’ arguments and conclude, for reasons
explained below, that the board did not err upon remand.
Accordingly, we affirm the board’s order.
In Williams I, we held that, because the board relied
on two significant factual inaccuracies in finding in favor
of claimant, its order was unsupported by substantial evidence. Id. at 551. Upon remand, the board reconsidered the
facts presented and the parties’ arguments without those
inaccuracies, and it once again found in favor of claimant.
On appeal, the parties no longer dispute the relevant facts of
this case. We therefore describe the record as it is presented
to us.
I. FACTUAL BACKGROUND
As we stated in Williams I:
“Claimant was compensably injured on March 10, 2006,
when he fell through some rotting boards while walking on
a ramp. He struck the ground, later describing the pain as
‘like being kicked in the back by a horse.’ Three days later,
he was evaluated at a trauma center and received a diagnosis of a possible T5-6 facet joint fracture. On March 23,
2006, claimant was examined by Dr. Ha, who diagnosed a
236 SAIF v. Williams
thoracic strain. SAIF accepted a claim for thoracic strain.
In July 2006, Ha found the thoracic strain medically stationary without permanent impairment, although claimant continued to experience severe thoracic symptoms. A
July 27, 2006, notice of closure did not award compensation
for permanent impairment.
“Over the next several years, claimant continued to
experience thoracic pain and spasms. He sought treatment
from at least 16 physicians over a four-and-a-half-year
period. Different MRI scans revealed, among other things,
mild posterior T7-8 and T8-9 disc protrusions and multiple
Tarlov cysts throughout the thoracic spine neural foramina. The largest Tarlov cyst was at T5-6. Claimant also
underwent multiple neurological evaluations of his thoracic
spine. Several different physicians who treated claimant
during that period opined that the Tarlov cyst at the T5
level was likely an ‘incidental finding’ and not causing
symptoms.”
Id. at 543-44.
The board thoroughly described claimant’s medical
history and the opinions of the doctors who evaluated him
after his injury. The first of those opinions was Ha’s, who,
in March 2006—nearly two weeks after claimant’s injury—
found that claimant’s pain in his midthoracic region “radiate[d] both proximally and distally from there,” and that
claimant was neurologically intact without deficiency.
Dr. Denekas, in November 2006, reported that
claimant experienced pain in his midthoracic region, which
did “not radiate around his chest,” but did, according to
claimant, “expand to approximately a 6" diameter area of
discomfort.” Denekas diagnosed claimant with his previously accepted condition of a “thoracic strain, medically stationary, with no obvious impairment,” and diffuse jerking,
which he did not believe was related to any type of neurological disorder.
In April 2007, an MRI revealed mild T7-8 and T8-9
disc protrusions and a “small nerve root sheath cyst on the
left at T5-6.” The radiologist stated that the cyst was “likely
to represent an incidental finding despite the fact that it is at
the level of [claimant’s] reported pain and muscle spasms.”
A May 2008 MRI showed small disc protrusions at T8-9 and
Cite as 304 Or App 233 (2020) 237
T9-10 and small cysts at a number of locations along the
spinal column, including at T5-6.
In January 2009, Dr. Sabahi examined claimant’s
Tarlov cysts, which he found to range in size from 4-6 mm.
Sabahi opined that if the cysts were nearly three times that
size—over 1.5 cm—and located more centrally within the
spinal canal, they might cause symptoms. However, because
they were so small and not centrally located, he did not
believe that they caused claimant’s symptoms.
In June 2009, Dr. Gambee treated claimant.
Gambee reported that claimant experienced mid back pain
and some muscle spasms, but no associated radicular pain.
Gambee concluded that the cysts were not the cause of
claimant’s pain and that they were probably present before
his workplace injury. That indicated to Gambee that most of
claimant’s pain was musculoskeletal in nature and simply
related to his original workplace injury—not neurological
symptoms related to the cysts.
Only after claimant conducted his own internet
research into Tarlov cysts did he contact Dr. Feigenbaum,
who is an expert in the field of Tarlov cysts. Around that
time, in August 2010, claimant was again examined at
Oregon Health and Science University (OHSU). In that
examination at OHSU, he reported sharp pain between his
shoulder blades, which was reported as “intermittent radiation around chest into xyphoid just below nipples.” That
was the first time on the record that he reported radiation
around his sides and to his chest.
In October 2010, Feigenbaum considered claimant’s
history, imaging studies, and the fact that he experienced
seven and one-half hours of relief from symptoms when
treated with trigger point injections. Claimant described
that relief as a “major breakthrough.” Shortly thereafter,
Feigenbaum diagnosed claimant with a “large left T5 Tarlov
cyst that appeared to be compressing the nerve root.” For
that, Feigenbaum recommended surgery.
In November 2010, Feigenbaum physically examined claimant for the first time and performed a left T5 laminectomy and treatment of a left T5 Tarlov cyst. Claimant’s
238 SAIF v. Williams
symptoms resolved after the surgery. Feigenbaum opined
that claimant’s March 2006 work injury caused the T5
Tarlov cyst to become symptomatic and require treatment.
In December 2010, claimant filed a new/omitted medical
condition claim for the T5 Tarlov cyst condition, arguing
that his work injury was a material contributing cause of
his symptoms, and thus caused his need for treatment of the
T5 Tarlov cyst.
II. PROCEDURAL HISTORY
At SAIF’s request, in December 2011, Dr. Rosenbaum
examined claimant. After doing so, Rosenbaum concluded
that, because claimant had multiple cystic abnormalities
throughout his spine, his cysts were “[c]onsistent with a congenital pathologic abnormality and not a single traumatic
event.” Rosenbaum opined that the pain associated with
the cyst could not be related to claimant’s work injury, in
part, because he did not believe that Tarlov cysts can ever
become symptomatic. He also believed that claimant’s post-surgery relief from symptoms indicated that he had experienced a placebo effect from his surgery. Rosenbaum based
that belief on the fact that claimant had a recurrence of
similar symptoms a few months after his surgery, following
an incident in which he overextended his leg while stepping
in a hole. Although those symptoms abated, they indicated
to Rosenbaum that claimant’s surgery likely caused him to
experience temporary relief from a placebo effect, because
if the cyst had been the problem, surgery would have permanently relieved his symptoms and they would not recur
after he overextended his leg. SAIF was persuaded by
Rosenbaum’s opinion and, on December 15, 2011, SAIF
denied the T5 Tarlov cyst claim. Claimant then requested a
hearing.
The matter was heard by an administrative law
judge (ALJ). In presenting its case, SAIF primarily relied
on the opinions of Sabahi and Rosenbaum. Sabahi opined
that claimant’s T5 Tarlov cyst existed before his work injury
and that, because the cyst was relatively small, it should not
have caused symptoms. He then explained that, even if the
cyst could cause claimant’s symptoms, they were likely not
causally related to the work injury itself. He and Rosenbaum
Cite as 304 Or App 233 (2020) 239
agreed that claimant’s mechanism of injury (i.e., stepping
through a board and landing hard on his foot) was not consistent with the development of a traumatic perineural
cyst with the symptoms that claimant described. They also
agreed that claimant’s post-surgery relief from symptoms
was likely the result of a placebo effect.
In support of his claim, claimant presented
Feigenbaum’s opinion. Feigenbaum ultimately concluded
that claimant’s work injury was the material contributing cause of his need for treatment of the Tarlov cyst.
Feigenbaum explained that he spoke with claimant and
reviewed his symptom history, imaging, and chart notes.
From those observations, he concluded that surgery would
help resolve claimant’s symptoms. He also recounted his
observations during surgery, which further led him to conclude that claimant’s workplace aggravation of his T5 Tarlov
cyst caused his symptoms. The ALJ set aside SAIF’s denial
of the claim, ordering SAIF to accept the claim. The ALJ
found that the claim was compensable based primarily on a
determination that Feigenbaum’s opinion was more persuasive than those of Rosenbaum and Sabahi.
On review, the board affirmed the ALJ’s order. The
board agreed with the ALJ’s conclusion that Feigenbaum’s
opinion was more persuasive than that of the other doctors. It based that determination, in part, on the fact that
Feigenbaum operated on and thus physically observed
claimant’s cyst and that claimant’s symptoms abated after
surgery. The board, however, also based its decision on two
facts not in the record: (1) a statement that Feigenbaum personally examined claimant a month before his surgery, and
(2) a finding that Ha noted symptoms in the T5 dermatome
“radiating to the chest” shortly after claimant’s work injury.
Petitioners appealed the board’s decision and we
reversed and remanded. We explained that the board’s decision was not supported by substantial evidence in light of
the two misstatements of fact. Id. at 551. We stated that “it
is at least plausible that the board’s misstatement affected
the board’s decision to credit Feigenbaum’s opinion over
that of Sabahi’s.” Id. Because we could not determine to
what extent the board relied on those errors in formulating
240 SAIF v. Williams
its decision, we remanded to the board for reconsideration.
Id.
On remand, the board again affirmed the ALJ’s
order requiring SAIF to accept a T5 Tarlov cyst as a new or
omitted condition. In doing so, the board acknowledged that
its recitation of the record was partially inaccurate. It reconsidered Feigenbaum’s report alongside each of the other
doctors’ reports and again concluded that Feigenbaum’s
analysis was more persuasive. Accordingly, the board concluded that claimant’s injury was the material contributing
cause of his symptoms and need for treatment of the Tarlov
cyst, and of the “condition” itself.
First, acknowledging its earlier misstatement of
Feigenbaum’s pre-surgery examinations, the board noted
that Feigenbaum’s opinion was still more convincing than
those of the other doctors, in part, because he personally
observed claimant’s condition during surgery. It found that
Feigenbaum’s opinion was “well-reasoned and persuasive,”
explaining:
“Feigenbaum, who is an expert in the treatment of Tarlov
cysts, was provided with all of the pertinent medical
records, considered claimant’s symptom presentation,
imaging studies, and his treatment at OHSU, and observed
claimant’s condition during surgery. He explained that the
causal relationship between the cyst and the symptoms
was evidenced by the compressed nerve root he found at
surgery, the procedure he performed to separate the nerve
from the cyst and to obliterate the cyst, and claimant’s
post-surgery relief of symptoms. … He explained how
claimant’s thoracic radicular symptoms following the work
injury correlated with a T5 cyst and that it was common
for Tarlov cysts to become symptomatic after a traumatic
event, ‘probably due to further or worsening nerve compression or inflammation.’ ”
The board also explained why Feigenbaum persuasively rebutted the opinions of Rosenbaum and Sabahi:
“In response to Dr. Sabahi’s observation that the cyst
was too small to be causing symptoms, Dr. Feigenbaum
responded that because the cyst existed in a small space,
it was ‘more about where the cyst is located and what it’s
Cite as 304 Or App 233 (2020) 241
pressing on[.]’ … Regarding Dr. Rosenbaum’s and Sabahi’s
opinion that claimant’s recurrence of symptoms after a
post-surgery off-work fall supported a conclusion that the
surgery likely caused a placebo effect, Dr. Feigenbaum
explained that the post-surgical fall likely irritated the
sacral nerves causing a recurrence of symptoms, but this
did not mean that the surgery was not successful. Rather,
Dr. Feigenbaum reasoned that it meant that nerves were
re-irritated. He reasoned that claimant had improved
since, indicating that it was a temporary irritation and the
benefits of the surgery were retained and real, not placebo.
“Finally, we do not consider the opinions of Drs.
Rosenbaum and Sabahi persuasive as they focused on
whether the injury caused the Tarlov cyst, and did not adequately consider whether it caused a disability or need for
treatment. … Yet, claimant need not prove that the injury
caused the cyst; rather, he must establish that the injury
was a material cause of his disability/need for treatment
for the claimed condition. Under such circumstances, we
consider Drs. Sabahi’s and Rosenbaum’s opinions less persuasive in resolving the compensability issue.”
(Footnote omitted.).
The board concluded that claimant established
a “new medical or omitted medical condition” under ORS
656.267 for a “thoracic spine Tarlov cyst,” affirming the
ALJ’s order. One member of the board dissented, concluding
that claimant did not prove that his injury caused his need
for treatment of the cyst, in part, because Feigenbaum’s
opinion did not sufficiently address claimant’s apparent lack
of symptoms between 2006 and 2010.
III. ANALYSIS
Petitioners again appeal the board’s order, raising
two assignments of error. First, petitioners argue that the
board erred by finding medical causation contrary to the law
of the case, and without substantial evidence or substantial
reason. That assignment of error has three components, and
we address each in turn. Second, petitioners argue that the
board erred by applying the wrong legal standard for determining the compensability of a new or omitted medical condition claim.
242 SAIF v. Williams
Before turning to those assignments of error, we
describe the relevant legal framework that we use to review
the board’s decision. A workplace injury is compensable in
a workers’ compensation action so long as it is “an accidental injury, … arising out of and in the course of employment requiring medical services or resulting in disability or
death.” ORS 656.005(7)(a). ORS 656.267 establishes the procedure for a claimant to initiate a claim for a new or omitted
medical condition. ORS 656.267 does not, however, explicitly provide a standard to prove that a new/omitted medical
condition claim arises out of the worker’s employment. We
therefore apply the “material contributing cause” standard
to determine whether claimant’s work injury was compensable.1 See ORS 656.003 (“Except where the context otherwise
requires, the definitions given in this chapter otherwise govern its construction.”); Schleiss v. SAIF, 354 Or 637, 643-44,
317 P3d 244 (2013) (explaining that an injury, as defined by
ORS 656.005(7)(a), “arises out of” employment “if the labor
being performed in the employment is a material, contributing cause which leads to the unfortunate result” (internal quotation marks omitted)); Olson v. Safeway Stores, Inc.,
132 Or App 424, 429-30,
888 P2d 1084 (1995) (applying the
“material contributing cause” test for an aggravation claim
where the statute governing aggravation claims did not supply one).
Thus, to prove the existence and compensability of
a new or omitted medical condition, the claimant must prove
that his or her injury was the “material contributing cause”
of the disability or need for treatment of the new or omitted condition. Schleiss, 354 Or at 643-44; Olson v. State Ind.
Acc. Com.,
222 Or 407, 414,
352 P2d 1096 (1960). “The claimant bears the burden of proving the existence and compensability of a new or omitted condition by a preponderance
of the medical evidence.” Williams I,
281 Or App at 548; see
also ORS 656.226(1) (requiring the claimant to prove the
compensability of an injury or occupational disease); De
Los-Santos v. Si Pac Enterprises, Inc.,
278 Or App 254, 257,
373 P3d 1274, rev den,
360 Or 422 (2016) (“[T]he legislature
1
As noted and further explained below, we do not address whether the
standard of proof of causation has changed, as petitioners argue in their second
assignment of error.
Cite as 304 Or App 233 (2020) 243
intended that a claimant would bear the burden of proving the existence of a claimed new or omitted condition in
the context of a claim under ORS 656.267[.]”). The claimant
must do so via expert medical opinion. Barnett v. SAIF,
122
Or App 279, 282,
857 P2d 228 (1993).
We review the board’s legal conclusions for legal
error and its determinations on factual issues for substantial evidence and substantial reason. Luton v. Willamette
Valley Rehabilitation Center, 272 Or App 487, 490,
356 P3d
150 (2015). “Substantial evidence exists when the record,
viewed as a whole, permits a reasonable person to find as
the Board did, in the light of supporting and contrary evidence.” State Farm Ins. Co. v. Lyda,
150 Or App 554, 559,
946 P2d 685 (1997), rev den,
327 Or 82 (1998). “In determining whether the board’s order is supported by substantial reason, we consider whether that order articulates the
reasoning that leads from the facts found to the conclusions
drawn.” Walker v. Providence Health System Oregon,
254 Or
App 676, 686,
298 P3d 38, rev den,
353 Or 714 (2013) (internal quotation marks omitted).
A. Second Assignment of Error
We first address and reject petitioners’ second
assignment of error. Petitioners argue that the board erred
by evaluating petitioner’s claim for a new/omitted medical
condition under a standard requiring petitioner to prove
that his work injury was the “material contributing cause
of the need for treatment or his disability.” That burden of
proof of causation was incorrect, petitioners argue, because
the legislature has altered the statutory scheme regulating
claims for new conditions, and because Brown v. SAIF, 361
Or 241,
391 P3d 773 (2017), required “claimant arguably [to]
show that the work injury not only made a condition ‘symptomatic,’ but contributed to the condition itself.” Claimant
responds that this assignment of error was unpreserved
because petitioners first raised it in their reply brief upon
remand, which deprived him of a meaningful opportunity to
respond to petitioners’ argument.
We reject petitioners’ argument because we agree
with claimant that this assignment of error is unpreserved.
The “touchstone” of the preservation doctrine “is procedural
244 SAIF v. Williams
fairness to the parties and to the trial court.” Peeples v.
Lampert, 345 Or 209, 220,
191 P3d 637 (2008). “[A]n assigned
error is preserved for our review if the issue underlying the
assignment of error was raised in the lower tribunal in a
manner that gave all opposing parties a fair opportunity
to respond and make their own cases with respect to the
issue, and that gave the lower tribunal a fair opportunity
to resolve the issue and avert the error claimed before us.”
Snyder v. SAIF,
287 Or App 361, 365,
402 P3d 743 (2017)
(citing Peeples,
345 Or at 219-21).
At the initial hearing, petitioners acknowledged
that the relevant standard required claimant to demonstrate that his work injury caused his symptoms and his
need for treatment of those symptoms. The board applied
that standard of proof both times that it considered the
case. Because raising a different theory in their reply brief
on remand after our decision in Williams I deprived claimant of a meaningful opportunity to respond to petitioners’
argument before the board, petitioners did not preserve this
assignment of error. We, therefore, reject petitioners’ second
assignment of error without further discussion.
B. First Assignment of Error
We turn now to petitioners’ first assignment of
error, which consists of three separate arguments: (1) that
the board’s order violated the law of the case, (2) that the
order lacked substantial evidence, and (3) that the order
lacked substantial reason. We address them each, in turn.
1. Law of the case
Petitioners start with the proposition that, in
Williams I, we held that Ha’s chart notes precluded a finding
that claimant experienced symptoms in the T5 dermatome
shortly after his injury. Petitioners then assert that the
board erred when it found that claimant “established that
such symptoms were always present,” despite our ruling in
Williams I.
The law of the case doctrine mandates that “an
appellate decision is binding and conclusive for purposes
of future proceedings in the same case.” Estrada v. Federal
Express Corp., 298 Or App 111, 118,
445 P3d 1276, rev den,
Cite as
304 Or App 233 (2020) 245
365 Or 769 (2019). The only binding portions of an appellate
court’s decision, however, are those that are “necessary to
the disposition of the appeal.” Hayes Oyster Co. v. Dulcich,
199 Or App 43, 53,
110 P3d 615, rev den,
339 Or 544 (2005)
(internal quotation marks omitted).
We reject petitioners’ argument that the board’s
opinion is contrary to the law of the case. Petitioners
interpret our holding in Williams I too broadly; if we had
held that claimant’s lack of specific symptoms reported in
Ha’s notes, on its own, precluded the board’s reliance on
Feigenbaum’s opinion regarding causation, we would not
have remanded the case to the board. In Williams I, we held
only that, because the board mistakenly relied on a fact not
present in Ha’s report, remand was required for the board
to determine whether it still found Feigenbaum’s opinion
more persuasive than those of the other doctors—in light
of that correction of the record. Williams I, 281 Or App at
551. We explicitly left open the possibility that the board
could conclude that Feigenbaum’s opinion was persuasive and that it could provide the basis for finding medical
causation; we simply required that it do so without relying
on factual inaccuracies. See
id. (“[I]t is at least plausible that
the board’s misstatement affected the board’s decision to
credit Feigenbaum’s opinion over Sabahi’s. Because it is not
possible for us to determine to what extent the errors …
affected the board’s decision, we remand to the board for
reconsideration.”). On remand, the board based its conclusion that claimant experienced symptoms on Feigenbaum’s
opinion—not Ha’s. It also found causation based on an accurate description of the record, which we recognized to be a
possible outcome on remand. Its analysis, therefore, did not
violate the law of the case.
2. Substantial evidence
We also reject petitioners’ argument that the board
erred by finding medical causation unsupported by substantial evidence. Petitioners point to what they believe to be the
“elephant in the room”—essentially, that the board disregarded a significant amount of evidence supplied by numerous doctors who concluded that claimant’s workplace injury
was not the material contributing cause of claimant’s need
246 SAIF v. Williams
for treatment of a T5 Tarlov cyst. They present several doctors’ opinions that the board did not address, as well as those
of Sabahi and Rosenbaum, to argue that there is insufficient
evidence indicating that claimant actually experienced the
alleged symptoms between his injury and when he was evaluated in 2010. Accordingly, they say, Feigenbaum’s opinion
alone cannot support an award for a new/omitted medical
condition claim.
“[W]hether a condition is encompassed within a new
or omitted condition claim is … a question of fact that we
review for substantial evidence.” Labor Ready v. Morgensen,
275 Or App 491, 497,
365 P3d 623 (2015). “Substantial evidence supports a finding when the record, viewed as a whole,
permits a reasonable person to make that finding.” Garcia v.
Boise Cascade Corp.,
309 Or 292, 294,
787 P2d 884 (1990).
Thus, we will not disturb the board’s conclusion that a new/
omitted medical condition claim is compensable so long as
its interpretation of competing medical evidence is reasonable. Labor Ready,
275 Or App at 498. If its interpretation
is reasonable, will not reverse the board’s order, even if
competing medical evidence could also support the opposite
conclusion. See Akins v. SAIF,
286 Or App 70, 76,
398 P3d
463, rev den,
362 Or 94 (2017) (concluding that the board’s
decision was supported by substantial evidence, despite the
possibility that it could have also reasonably adopted the
opposite conclusion).
Notwithstanding the volume of medical opinions
supporting petitioners’ theory of the case, we find that
the board’s order was supported by substantial evidence.
Feigenbaum’s opinion and the medical evidence that the
board found provided a reasonable basis to support the
board’s conclusion. The record reflects that the board weighed
the evidence by evaluating the content of the opinions and
testimony and not by simply counting the number of expert
witnesses presented by the parties. To be sure, the board
could have adopted its dissenting member’s conclusion and
reached a different result. However, that does not render its
opinion unsupported by substantial evidence. See id.
Feigenbaum relied upon the chart notes of other providers in reaching his conclusion that claimant experienced
Cite as 304 Or App 233 (2020) 247
symptoms consistent with a T5 Tarlov cyst dating back
to the approximate time of his injury. That included Ha’s
notes from March 2006, indicating that claimant presented
“pain in his midthoracic region,” which “radiate[d] both
proximally and distally from there,”2 as well as a note from
2010 indicating that claimant experienced pain “wrapping
around his chest and ending up at the xyphoid process.”3
In reaching his opinion, Feigenbaum reviewed and considered all the doctors’ notes created between 2006 and 2010,
his consultation with claimant and evaluation of claimant’s
reported symptoms, his pre-surgery examination of claimant, his surgery and personal observation of claimant’s T5
Tarlov cyst, his medical expertise, and claimant’s post-surgery relief from symptoms. Feigenbaum was permitted
to learn about claimant’s symptom presentation (pain in his
back wrapping around to his chest) from claimant himself,
and he was permitted to use the reports available and his
expertise to formulate his conclusion about what caused
claimant’s need for treatment. See SAIF v. Lewis,
335 Or
92, 101,
58 P3d 814 (2002) (explaining that a doctor may
rely on his or her interview of a patient to produce adequate
objective medical findings). Put another way, he was not
required to independently verify everything that claimant
told him about his symptoms. Because the board’s reliance
on Feigenbaum’s objective medical findings was reasonable,
substantial evidence supported its conclusion.
3. Substantial reason
Relatedly, petitioners argue that the board’s order
was not supported by substantial reason. They argue that,
even if the board could rely solely on Feigenbaum’s report, the
board was required to provide a more thorough explanation
2
The board in Williams I stated that Ha’s notes indicated that “claimant
had experienced symptoms at T5 and radiating to the anterior chest as early as
two weeks after the work injury.” Williams I, 281 Or App at 549 (emphasis in
the original). We reversed because Ha’s notes did not specifically indicate that
claimant experienced those symptoms, which would have been consistent with
an aggravated T5 Tarlov cyst. Here, however, the board relied solely on the information actually present in Ha’s record—that claimant experienced pain in his
midthoracic region, which radiated both proximally and distally. Feigenbaum
relied on that symptom presentation when analyzing claimant’s injury.
3
The “xyphoid process” is the area at the bottom of the sternum in the chest.
Stedman’s Medical Dictionary 1836 (28th ed 2006).
248 SAIF v. Williams
for why it chose Feigenbaum’s analysis over those of the
other experts. We reject that assignment of error because
the board adequately explained its conclusion.
“In determining whether the board’s order is supported by substantial reason, we consider whether that order
articulates the reasoning that leads from the facts found to
the conclusions drawn.” Walker, 254 Or App at 686 (internal quotation marks omitted). We will generally reverse the
board’s order for a lack of substantial reason when it fails to
resolve material factual discrepancies present on the record,
or when it fails to explain how its facts led to its conclusion. See Federal Express Corp. v. Estrada,
275 Or App 400,
407,
364 P3d 25 (2015) (finding that the board’s order lacked
substantial reason when it included inconsistent factual
findings and failed to rationally connect those findings to
its conclusion); Hamilton v. Pacific Skyline, Inc.,
266 Or App
676, 682,
338 P3d 791 (2014) (holding that the order was
not based on substantial reason because the board failed to
connect its factual findings to its conclusion); Christman v.
SAIF,
181 Or App 191, 197-98,
45 P3d 946 (2002) (holding
that the board’s order was not based on substantial reason
when it did not explain inconsistent factual findings).
Before announcing its conclusions of law, the board
thoroughly described claimant’s history of symptom presentation and treatment. It considered our opinion in Williams I
and described its findings (without misstating the record).
The board then articulated each of the relevant doctors’ opinions about the cause of claimant’s symptoms and his need
for treatment. It described Sabahi’s opinion: that claimant’s
injury likely did not cause claimant’s symptoms because
his Tarlov cyst was relatively small, and that his injury
“was not conducive to ‘blowing out’ nerve root sheaths” near
claimant’s cyst. Finally, it described Feigenbaum’s opinion:
that pre- mid-, and post-surgery observations of claimant’s
conditions and claimant’s symptoms were consistent with
a Tarlov cyst becoming “symptomatic after trauma due to
worsened nerve compression or inflammation,” likely caused
by his work injury.
The board determined that the compensability of
claimant’s Tarlov cyst ultimately came down to a credibility
Cite as 304 Or App 233 (2020) 249
contest between Feigenbaum and Sabahi. Proceeding from
the facts articulated, the board found Feigenbaum’s opinion more persuasive because: (1) Feigenbaum considered
claimant’s history of symptom presentation; (2) Feigenbaum
observed that claimant’s imaging studies suggested an
inflamed nerve root sheath aggravated by a T5 Tarlov
cyst; (3) Feigenbaum relied on his expertise in Tarlov cysts
to evaluate claimant—an expertise that none of the other
doctors shared; (4) Feigenbaum was the only doctor to actually operate on and physically observe claimant’s cyst; and
(5) claimant’s symptoms resolved after his surgery.
The board also explained why it did not find other
doctors’ opinions to be more persuasive. It found that Sabahi’s
and Rosenbaum’s opinions failed to squarely address the
specific issue of causation because they concluded that
claimant’s workplace injury did not cause the Tarlov cyst
itself. But, the cause of the Tarlov cyst itself was not relevant
to compensability. Claimant was required to establish that
his injury was the material contributing cause for his need
for his disability or need for treatment of the Tarlov cyst. In
any event, the board found that Feigenbaum’s opinion also
“persuasively support[ed] a conclusion that the claimed T5
Tarlov cyst was a ‘condition’ (i.e., the physical status of a
body party), rather than just a symptom.” The board properly focused on the elements required to determine compensability, and it explained that the opinions of Sabahi and
Rosenbaum did not adequately address those elements.
Finally, the board considered Feigenbaum’s response
to the other doctors’ opinions. Addressing Sabahi’s opinion that the cyst was too small to cause the symptoms
claimant described, Feigenbaum explained that the symptom presentation “was more about where the cyst [was]
located and what it[ ] [was] pressing on” than it was about
size. Addressing the placebo effect opinion based upon the
recurrence of symptoms weeks after surgery, Feigenbaum
explained that claimant’s post-surgery fall likely irritated
“the sacral nerves, causing a recurrence of symptoms.” He
added that the eventual disappearance of symptoms supported the conclusion that his surgery had likely been successful. The board’s adoption of those findings adequately
250 SAIF v. Williams
addressed the Sabahi and Rosenbaum opinions in the context of its findings.
The board thoroughly considered Feigenbaum’s
analysis and explained why it adopted his conclusion that
claimant’s work injury was the material contributing cause
of his need for treatment. Those conclusions logically followed the board’s findings of fact, and they resolved the
doctors’ conflicting opinions and reports.4 The opinion was
supported by substantial reason. Accordingly, the board did
not err upon remand.
Affirmed.
4
Petitioners also present reports of doctors that the board did not address in
its opinion, arguing that the board should have explicitly addressed them. After
reviewing those reports, we conclude that the board did not err by declining to
do so. The omitted reports largely focus on the fact that claimant did not appear
to present neurological symptoms consistent with an aggravated T5 Tarlov cyst
until 2010. The board already addressed that issue, explaining that it found
Feigenbaum’s opinion credible and persuasive when he opined that (1) claimant
did experience symptoms consistent with an aggravated nerve root associated
with a T5 Tarlov cyst, and (2) claimant’s 2006 work injury caused that aggravation. The board was not required to dispute each doctor’s contrary observations
when those observations were redundant.
