34
Argued and submitted July 28, 2020, reversed and remanded July 8, 2021
In the Matter of the Compensation of
Maria I. Pedro, Claimant.
Maria I. PEDRO,
Petitioner,
v.
SAIF CORPORATION;
and Ingallinas Box Lunch, Inc.,
Respondents.
Workers’ Compensation Board
1705593; A170708
495 P3d 183
Claimant petitions for judicial review of a final order of the Workers’
Compensation Board (board). At issue is the board’s affirmance of SAIF
Corporation’s denial of claimant’s omitted condition claim under ORS 656.267(1)
for an L4-5 disc protrusion. Although the board found that the disc protrusion
was caused in material part by the workplace injury that led to claimant’s original claim, it determined that the disc protrusion was part of a “combined condition,” and that the major cause of claimant’s disability or need for treatment
was claimant’s preexisting arthritis. The board therefore determined that claimant’s disc protrusion was not compensable. On appeal, claimant contends that
the board applied an incorrect legal standard in determining that the L4-5 disc
protrusion is part of a combined condition and also that substantial evidence does
not support that determination. Held: The board’s determination that claimant’s
L4-5 disc protrusion was part of a combined condition with claimant’s preexisting
arthritis was not supported by substantial evidence because the evidence on the
record did not explain how those medical conditions combined.
Reversed and remanded.
Julene M. Quinn argued the cause for petitioner. On the
briefs was Theodore P. Heus.
Allison Lesh argued the cause and filed the brief for
respondents.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
LAGESEN, P. J.
Reversed and remanded.
Cite as 313 Or App 34 (2021) 35
LAGESEN, P. J.
Claimant petitions for judicial review of a final
order of the Workers’ Compensation Board (board). At issue
is the board’s affirmance of SAIF Corporation’s denial of
claimant’s omitted condition claim under ORS 656.267(1)
for an L4-5 disc protrusion. Although the board found that
the L4-5 disc protrusion was caused in material part by the
workplace injury that led to claimant’s original claim, it
determined that the L4-5 disc protrusion was part of a “combined condition,” and that the major cause of claimant’s disability or need for treatment resulting from that combined
condition was claimant’s preexisting arthritis. Because of
those conclusions, the board determined that claimant’s
L4-5 disc protrusion was not compensable, notwithstanding the fact that claimant’s workplace injury was a material cause of the protrusion. Before us, claimant contends
that the board applied an incorrect legal standard in determining that the L4-5 disc protrusion is part of a combined
condition and also that substantial evidence does not support that determination. We agree that substantial evidence
does not support the board’s finding that claimant’s L4-5
disc protrusion is part of a combined condition within the
meaning of ORS 656.005(7)(a)(B), as interpreted in Brown
v. SAIF, 361 Or 241,
391 P3d 773 (2017). Accordingly, we
reverse and remand.
Although claimant disputes the board’s finding that
her L4-5 disc protrusion is part of a combined condition,
she does not otherwise contest the board’s factual findings.
Accordingly, we draw the following undisputed facts from
the board’s order.1
Claimant works for a catering business. She
injured her back at work in May 2017 while lifting and carrying boxed orders. SAIF accepted a claim, identifying the
accepted condition as a lumbar strain.
In November 2017, claimant requested SAIF to
accept, among other conditions, a disc protrusion at L4-5.
Claimant asserted that the L4-5 disc protrusion was caused
1
Our reference to the board’s order includes the administrative law judge’s
order, which the board adopted and affirmed with some supplementation.
36 Pedro v. SAIF
in material part by the May 2017 incident and should
be accepted as a new or omitted condition under ORS
656.267(1). SAIF denied the request, stating that it had
determined that the condition was not compensably related
to the work injury. Claimant requested a hearing. Following
that hearing, the administrative law judge (ALJ) upheld
SAIF’s denial. She determined that “the work injury was
at least a material contributing cause of the disability/need
for treatment for the L4-5 disc protrusion,” a determination
that would ordinarily make the condition compensable. See
Hopkins v. SAIF, 349 Or 348, 351,
245 P3d 90 (2010) (“To
establish a ‘compensable injury,’ the worker must prove that
a work-related injury is a material contributing cause of a
disability or need for treatment.”).
The ALJ nonetheless determined that SAIF’s denial
was proper because it had proved that claimant has a “combined condition” involving her preexisting arthritis, and
that claimant’s disability or need for treatment of that combined condition was caused in major part by claimant’s preexisting arthritis. Claimant sought review before the board,
which adopted and affirmed the ALJ’s decision with supplemental analysis addressing the rejection of the omitted
condition claim for the L4-5 disc protrusion.
Claimant petitioned this court for judicial review.
On review, she contends that the board erred in two related
respects. Claimant contends that, in view of Brown, the
board relied on a wrong legal standard in denying claimant’s omitted-condition claim on the basis that the omitted
condition was part of a combined condition. Under Brown,
claimant asserts, a combined condition, as defined by ORS
656.005(7)(a)(B), is one that entails two separate conditions
combining. See 361 Or at 255-56. Because, in claimant’s
view, “a combined condition requires [a showing that] two
discrete, identifiable medical conditions” combined, and “the
board relied on an expert who never evaluated or weighed
the claimed L4-5 disc protrusion against the preexisting
arthritis,” the board necessarily applied the wrong legal
standard in determining whether claimant had a combined
condition. Claimant additionally contends that there is no
substantial evidence to support a finding that the L4-5 disc
protrusion combined with claimant’s preexisting arthritis,
Cite as
313 Or App 34 (2021) 37
because, in claimant’s view, there is no evidence addressing how the L4-5 disc protrusion combined with claimant’s
preexisting arthritis to result in an identifiable combined
condition.
In response, SAIF acknowledges that the board’s
analysis of whether claimant’s L4-5 disc protrusion is part
of a combined condition does not track the Supreme Court’s
analysis in Brown. Rather, SAIF contends that Brown allows
for different approaches to combined conditions depending on context, something that would allow for the board’s
approach here. SAIF points to the Supreme Court’s decision in Multifoods Specialty Distribution v. McAtee, 333 Or
629, 636,
43 P3d 1101 (2002), in which the court described a
“combined condition” as “two medical problems [occurring]
simultaneously.” In SAIF’s view, under that standard, the
expert opinion on which the board relied supports its finding of a combined condition because the expert analyzed
“the impact of the work event on the L4-5 disc pathology and
the preexisting arthritis.” SAIF additionally points to our
decision in Hammond v. Liberty Northwest Ins. Corp.,
296
Or App 241,
437 P3d 269 (2019), as supporting the analysis
employed by the board. SAIF argues that, under Hammond,
it is not necessary for it to show that “two discrete, identifiable medical conditions” combined in order for it to prove
a combined condition. Beyond that, SAIF contends, when
the Hammond analysis is applied, the record supports the
board’s finding that claimant has a cognizable combined
condition.
In a memorandum of additional authorities filed
after argument, claimant points to our recent decision in
Carrillo v. SAIF, 310 Or App 8,
484 P3d 398 (2021), as clarifying our decision in Hammond, and, additionally, as rejecting SAIF’s reading of McAtee, to the extent that SAIF reads
McAtee as holding that a determination that a claimant has
two medical problems simultaneously is sufficient to establish a combined condition.
To the extent claimant’s arguments challenge the
board’s interpretation of the workers compensation statute,
our review is to determine whether the board “erroneously
interpreted a provision of law.” ORS 183.482(8)(a). To the
38 Pedro v. SAIF
extent claimant challenges the sufficiency of the evidence
supporting the board’s finding of a combined condition, our
review is to determine whether the board’s finding is supported by substantial evidence, that is, whether “the record,
viewed as a whole, would permit a reasonable person to
make that finding.” ORS 183.482(8)(c).
Both parties’ arguments have force. As the Supreme
Court acknowledged in Brown, “the relevant statutes are
rife with ambiguities.” 361 Or at 283. Ultimately, we conclude that claimant’s view is the one that gives effect to the
Supreme Court’s interpretation of “combined condition” in
ORS 656.005(7)(a)(B), and, further, when “combined condition” is given the meaning announced in Brown, that substantial evidence does not support the board’s finding of a
combined condition.
As defined by ORS 656.005(7)(a)(B), a “combined
condition” is a condition that occurs “[i]f an otherwise compensable injury combines at any time with a preexisting
condition to cause or prolong disability or a need for treatment.” In Brown, the court held “that the ‘injury’ component
of the phrase ‘otherwise compensable injury’ in ORS 656.005
(7)(a)(B) refers to a medical condition, not an accident.” 361
Or at 272. Here, claimant has established, and SAIF does
not at this point dispute, that the workplace accident was
a material cause of claimant’s medical condition of an L4-5
disc protrusion. That means that claimant’s L4-5 disc protrusion is an “injury” within the meaning of ORS 656.005
(7)(a)(B) that is otherwise compensable because of its material causal connection to the May 2017 workplace incident.
Hopkins,
349 Or at 351.
Accordingly, to deny claimant’s claim for that specific medical condition on the grounds that it was part of
a combined condition with claimant’s preexisting arthritis,
SAIF had to introduce evidence showing (1) how the L4-5
disc protrusion combined with claimant’s preexisting arthritis to result in a disability or need for treatment; and (2) that
the L4-5 disc protrusion was not the major cause of the disability or need for treatment resulting from that combined
condition. As the parties appear to agree, the evidence in
the record does not address that formulation of a combined
Cite as 313 Or App 34 (2021) 39
condition. In particular, Dr. Button’s opinion, on which the
board based its finding of a combined condition, does not analyze how the L4-5 disc protrusion interacts with preexisting
arthritis so as to result in a combined condition. This, perhaps, is not surprising, because Button’s opinion was that
the May 2017 incident was not even a material cause of the
L4-5 disc protrusion. In any event, Button’s analysis focused
on the role that the May 2017 work incident played in claimant’s need for treatment of the L4-5 disc protrusion and did
not explain how the L4-5 disc protrusion combined with
the preexisting arthritis. Further, Button did not appear to
evaluate which of those two particular medical conditions
played the greater causal role in the disability or need for
treatment that claimant experienced as a result of the interaction of those two specific medical conditions.
Hammond is not to the contrary. Recently, in
Carrillo, we explained that “the term ‘combined condition’
suggests two separate conditions that combine.” 310 Or App
at 11 (emphasis omitted). We clarified that Hammond stood
for the narrow proposition that “an initial claim itself can be
a combined condition when a work incident, together with a
preexisting condition, cause a separate injury.”
Id. at 13. In
that case, the identified combined condition was a fracture
that was caused by the claimant’s work activity in combination with the claimant’s preexisting cancer.
Id. at 12.
This case, in contrast with Hammond, does not
involve the circumstances that led us to conclude that the
Brown analysis did not apply in that case. It does not involve
an initial injury claim or a claim that SAIF should have
accepted a specific medical condition that, in and of itself,
constituted a combined condition. Rather, this case involves
a request that SAIF accept, as an omitted condition, an
L4-5 disc protrusion that, it is undisputed at this point,
was caused in material part by claimant’s workplace injury.
Although that omitted condition had not yet been accepted
at the time that the board conducted its combined-condition
analysis, we do not understand why that would alter the
analysis where, as here, a claimant has proved that a specific medical condition was caused in material part by
the workplace incident. Under such circumstances, and
in contrast with the situation in Hammond, it is possible
40 Pedro v. SAIF
to analyze whether a claimant has a combined condition
under the Brown framework for combined conditions, and
SAIF has not persuaded us that there is a reason to deviate
from the Brown approach in the context of a request that an
insurer accept an omitted condition caused in material part
by a workplace incident for which the insurer previously has
accepted other conditions found to be caused in material
part by the same workplace incident.
In sum, in view of Brown’s explanation of what it
means to be a “combined condition” under ORS 656.005
(7)(a)(B), and the particular medical evidence in this case,
the board’s determination that claimant’s L4-5 disc protrusion is part of a combined condition with claimant’s preexisting arthritis is not supported by substantial evidence.
We therefore reverse and remand.
Reversed and remanded.
