8
Argued and submitted November 9, 2020, reversed and remanded
March 17, 2021
In the Matter of the Compensation of
Mario Carrillo, Claimant.
Mario CARRILLO,
Petitioner,
v.
SAIF CORPORATION
and Medford School District 549C,
Respondents.
Workers’ Compensation Board
1303729; A169786
484 P3d 398
Claimant seeks judicial review of an order of the Workers’ Compensation
Board on remand adhering to its conclusions that claimant’s left shoulder condition was a combined condition as a combination of a preexisting condition and
symptoms of the preexisting condition and that SAIF had met its burden under
ORS 656.266 to establish that the claim was not compensable, because the work
incident was not the major contributing cause of claimant’s need for treatment
of or disability from the condition. Held: A “combined condition” is two separate
conditions that combine to cause symptoms or disability. A preexisting condition
and its symptoms are not separate conditions. The board therefore erred in concluding that claimant’s claim was a combined condition.
Reversed and remanded.
Julene M. Quinn argued the cause and filed the briefs for
petitioner.
David L. Runner argued the cause and filed the brief for
respondents.
Richard B. Myers and Bennett Hartman, LLP, filed the
brief amicus curiae for Oregon Trial Lawyers Association.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
ARMSTRONG, P. J.
Reversed and remanded.
Cite as 310 Or App 8 (2021) 9
ARMSTRONG, P. J.
This case is before us a second time for judicial
review of a Workers’ Compensation Board order upholding
SAIF’s denial of claimant’s initial injury claim for a left
shoulder condition. In Carrillo v. SAIF, 291 Or App 589,
420
P3d 636 (2018) (Carrillo I), we remanded the board’s order
for reconsideration in light of the Supreme Court’s opinion
in Brown v. SAIF,
361 Or 241, 272,
391 P3d 773 (2017) (construing an “otherwise compensable injury” to be a medical
condition that results from the work accident, and not the
work accident itself, for purposes of ORS 656.005(7)(a)(B)).
On reconsideration, the board adhered to its original order
determining that claimant’s shoulder injury claim was for
a “combined condition” as defined in ORS 656.005(7)(a)(B)1
and upholding SAIF’s denial. The narrow issue before us on
this judicial review is whether the board properly treated
the claim as one for a combined condition. We review the
board’s order for substantial evidence and legal error, ORS
183.484(8)(a), (c), conclude that the board erred in treating
the claim as one for a combined condition, and therefore
reverse and remand the board’s order.
We quote from our first opinion summarizing the
facts and procedural history:
“Claimant, who works as a custodian, filed an injury
claim based on symptoms he experienced in his left shoulder after a day of heavy lifting at work. SAIF denied the
claim, asserting that the work injury had combined with
preexisting conditions and was not the major contributing
cause of the combined condition. See ORS 656.005(7)(a)(B).
“Claimant filed a request for hearing. The board found
that claimant has a preexisting condition in his left shoulder as defined by ORS 656.005(24), and that finding is supported by substantial evidence. There is also substantial
evidence in the record to support the board’s finding that
the day of heavy lifting was a material contributing cause
1
ORS 656.005(7)(a)(B) provides:
“If an otherwise compensable injury combines at any time with a pre-existing condition to cause or prolong disability or a need for treatment, the
combined condition is compensable only if, so long as and to the extent that
the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need
for treatment of the combined condition.”
10 Carrillo v. SAIF
of claimant’s disability and need for treatment of the pre-existing condition. The evidence in the record is mixed as
to whether claimant experienced a new ‘injury’ on the day
of heavy lifting. The board did not explicitly resolve that
issue, because it concluded, relying on this court’s opinion
in Brown v. SAIF, 262 Or App 640,
325 P3d 834 (2014), that
the ‘work related injury/incident,’ i.e., the day of heavy lifting, was an ‘otherwise compensable injury’ that combined
with the preexisting condition to cause disability and the
need for treatment. But the board also found that SAIF had
presented persuasive evidence that the work-related injury
incident was not the major contributing cause of claimant’s
disability and need for treatment of the combined condition, and concluded that the claim therefore was not compensable under ORS 656.005(7)(a)(B).
“The Supreme Court reversed our decision in Brown,
holding, among other conclusions, that an ‘otherwise
compensable injury’ for purposes of ORS 656.005(7)(a)(B)
equates with an ‘accepted condition.’ 361 Or at 261. Because
our opinion in Brown was central to the parties’ arguments
and to the board’s analysis, we remand for reconsideration
in light of the Supreme Court’s opinion.”
Carrillo I, 291 Or App at 590-91. On remand, the board
reconsidered the medical record under the legal framework
for combined condition claims set forth in the Supreme
Court’s opinion in Brown. The board was persuaded by medical evidence that claimant’s work activities had precipitated symptoms of a preexisting condition and that those
symptoms had “combined” with the preexisting condition
itself but had not caused a new condition. The board further
found that claimant’s work activities were a material contributing cause but not the major contributing cause of his
need for treatment or disability of the combined condition.
The board thus adhered to its conclusion that SAIF had met
its burden under ORS 656.2662 to establish that claimant’s
2
ORS 656.266(2) provides:
“… [F]or the purpose of combined condition injury claims under ORS
656.005 (7)(a)(B) only:
“(a) Once the worker establishes an otherwise compensable injury, the
employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, the major contributing cause of the disability
of the combined condition or the major contributing cause of the need for
treatment of the combined condition.”
Cite as 310 Or App 8 (2021) 11
left shoulder condition was a combined condition and was
not compensable because the February 2013 work incident
was not the major contributing cause of his need for treatment of or disability from the condition.
In support of its conclusion that the claim was
for a combined condition, the board reasoned that, under
Multifoods Specialty Distribution v. McAtee, 333 Or 629, 636,
43 P3d 1101 (2002), a “combined condition” is “two medical problems simultaneously.” Although claimant’s work
incident had not caused a separate medical condition, the
board was persuaded that claimant’s symptomatic flareup
of his preexisting condition—caused in material part by the
work incident—was a medical problem separate from the
preexisting condition that combined with the preexisting
condition. The board rejected claimant’s contentions that
a combined condition consists of two separate medical conditions that combine and that a symptomatic flareup of a
preexisting condition cannot combine with the preexisting
condition itself.
We agree with claimant that the board erred. As
the Supreme Court pointed out in Brown, the term “combined condition” suggests two separate conditions that combine. 361 Or at 255-56; see also ORS 656.005(7)(a)(B). The
Supreme Court’s statement in McAtee, on which the board
relied, that a combined condition involves “two medical problems simultaneously” is not inconsistent with that reasoning. Indeed, in McAtee, the court said that “[a] combined condition occurs when a new injury combines with an old injury
or pre-existing condition to cause or prolong either disability
or a need for treatment.”
333 Or at 634. See Fred Meyer, Inc.
v. Evans,
171 Or App 569, 573,
15 P3d 1261 (2000) (“The
operative principle [of ORS 656.005(7)(B)] is that multiple
conditions combine to create a disability or need for treatment.”); Luckhurst v. Bank of America,
167 Or App 11, 16-17,
1 P3d 1031 (2000) (“[I]n order for there to be a ‘combined
condition,’ there must be two conditions that merge or exist
harmoniously … rather than one condition made worse” by
a work-related injury.); Multifoods Specialty Distribution v.
McAtee,
164 Or App 654, 662,
993 P2d 174 (1999), aff’d,
333
Or 629,
43 P3d 1101 (2002) (“[A] combined condition may
constitute either an integration of two conditions or the close
12 Carrillo v. SAIF
relationship of those conditions.”). A preexisting condition
and its symptoms are not separate conditions. See Arms v.
SAIF,
268 Or App 761, 770-71,
343 P3d 659 (2015) (distinguishing a combined condition from a worsening of a pre-existing condition and noting that “ORS 656.225(1) and (2)
contemplate medical services for preexisting conditions
that are worsened by work conditions or events”). The board
should consider in the first instance whether claimant’s
symptomatic flareup is compensable as a worsening of his
preexisting condition.
Other cases cited by the parties have not involved
the issue presented here—whether a combined condition
can derive from a preexisting condition and its symptoms.
For example, Brown involved an accepted injury claim for a
lumbar strain that was found to have combined with a pre-existing degenerative back condition. The question in Brown
was whether, for purposes of determining the continued
compensability of the combined condition, the “otherwise
compensable injury,” as used in ORS 656.005(7)(a)(B), was
limited to the accepted lumbar strain or also included other
conditions not accepted that might have resulted from the
same work-related accident that caused the lumbar strain.
361 Or at 282. The court held that, in the context of a combined condition claim involving a previously accepted injury,
the term “injury,” as used in the phrase “otherwise compensable injury,” ORS 656.005(7)(a)(B), refers to the injury or
condition that has been accepted.
Id.
Our opinion in Hammond v. Liberty Northwest Ins.
Co., 296 Or App 241,
437 P3d 269 (2019), involved a different factual scenario and a claim for death benefits. There,
the worker had a preexisting cancer in his femur and suffered a fracture—ultimately leading to his death—while
walking at work.
Id. at 242. The medical evidence was that
the weight-bearing activity of walking had combined with
the preexisting cancer to cause the fracture.
Id. Unlike in
Brown, there had been no previously accepted condition.
Id. at 245. The board viewed the claim as a combined condition claim and identified the fracture as an “otherwise compensable injury,” because it had been caused in material part
by the walking. We implicitly rejected an analysis requiring
that, to establish an initial claim for a combined condition
Cite as
310 Or App 8 (2021) 13
in the absence of a previous acceptance, there must be an
“otherwise compensable injury” that combines with a pre-existing condition. We reasoned that an initial claim itself
can be a combined condition when a work incident, together
with a preexisting condition, cause a separate injury. We
held in Hammond that the femur fracture—brought on in
part by work activity and in part by the cancer—was the
combined condition. Id. at 245-47.
Claimant asks us to reconsider Hammond, contending that it is inconsistent with Brown to the extent that it
applies a different test to determine the existence of a combined condition in the context of an initial injury claim. But
Hammond, like Brown, did not address the narrow question
presented here, whether symptoms of a preexisting condition brought on by work activity can “combine” with the pre-existing condition to give rise to a combined condition. For
that reason, this case does not present an opportunity to
reconsider Hammond. To the extent that Hammond might
be understood to hold that a “symptom” of a preexisting
condition and the preexisting condition itself can “combine”
to give rise to a combined condition, that understanding is
disavowed.
We conclude that the board erred in determining
that the symptoms of claimant’s preexisting shoulder condition combined with the preexisting condition itself to give
rise to a combined condition claim. We therefore reverse and
remand the board’s order for reconsideration.
Reversed and remanded.
