588
Argued and submitted November 6, 2020, reversed and remanded
November 10, 2021
In the Matter of the Compensation of
Margarett Y. Interiano, Claimant.
Margarett Y. INTERIANO,
Petitioner,
v.
SAIF CORPORATION
and OHSU - Oregon Health & Science University,
Respondents.
Workers’ Compensation Board
1801113, 1502779, 1403713, 1505067;
A170274
502 P3d 224
Claimant petitions for judicial review of a final order of the Workers’
Compensation Board that concluded that her claim for a 2014 low-back injury
was not compensable under ORS 656.005(7)(a)(B), the “combined condition” statute for injury claims. Claimant asserts that the board erred in determining that
her preexisting conditions and the symptoms of those conditions brought on by
the work injury “represented two medical problems” that constituted a legally
cognizable combined condition. Held: Because a preexisting condition and its
symptoms are not separate conditions, the board erred in determining that
claimant had a combined condition within the meaning of ORS 656.005(7)(a)(B).
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.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
POWERS, J.
Reversed and remanded.
Cite as 315 Or App 588 (2021) 589
POWERS, J.
Claimant petitions for judicial review of a final
order of the Workers’ Compensation Board that concluded
that her claim for a 2014 low-back injury was not compensable under ORS 656.005(7)(a)(B), the “combined condition”
statute for injury claims. In her first assignment of error,
claimant asserts that the board erred in determining that
claimant suffered from a “combined condition.” In her second
assignment of error, claimant asserts that, even assuming
that the board correctly determined that a combined condition existed, the board erred in concluding that claimant’s
“otherwise compensable injury” was not the major contributing cause of claimant’s disability or need for treatment.
We agree that the board erred in determining that claimant was suffering from a combined condition as defined
in ORS 656.005(7)(a)(B). Given that conclusion, we do not
reach claimant’s second assignment of error. Accordingly,
we reverse and remand.
The facts are not in dispute. Claimant worked as
a Public Services Representative/Parking Patroller for
employer OHSU—Oregon Health & Science University. Her
job duties involved keeping the roads clear, placing signage,
monitoring pay stations, loading storage units, building steel
shelving, loading delineators, and other various activities
involving lifting between 40 and 80 pounds. In November
2013, claimant helped move a 250-pound pay station from
a storage unit and injured her back. Claimant sought treatment following the incident, and SAIF accepted a claim on
behalf of OHSU for a disabling left lumbar strain.
In January 2014, claimant established treatment
with Dr. Takacs, who diagnosed claimant with a left lumbar strain, with a possible herniated disc. A lumbar spine
MRI scan also revealed minor degenerative changes at the
L4-5 level, with a small focal protrusion, possibly affecting
the fifth root. In April 2014, claimant submitted a written
claim to expand the scope of acceptance of her November
2013 claim to include left L5 radiculopathy and a herniated
disc at L4-5. At SAIF’s request, Dr. Rosenbaum examined
claimant and diagnosed her with preexisting lumbar spondylosis and a left lumbar strain secondary to the November
590 Interiano v. SAIF
2013 injury. Based on his review of the MRI, Rosenbaum
opined that claimant did not have nerve root compression,
and that the degree of disc bulging at L4-5 was “inconsequential and incidental” and not representative of a herniated disc at the L4-5 level. SAIF denied claimant’s new or
omitted condition claim for L5 radiculopathy and an L4-5
herniated disc. After a hearing, SAIF issued a notice of closure on the November 2013 claim for a lumbar strain and
awarded no permanent disability benefits. That claim is not
before us.
In December 2014, claimant had to perform increased
work activity beyond her lifting restrictions due to inclement weather. The increased work activities caused claimant
to seek emergency medical treatment for low back pain.
Claimant was diagnosed with a lumbar strain. Claimant
returned to Takacs, who opined that 10 percent of claimant’s discomfort was related to preexisting spondylosis and
90 percent of her current symptomatology was related to
a herniated disc at L4-5. Takacs also assessed progressively worsening left lower extremity radiculopathy and a
herniated disc at L5-S1 “related to work-related activities.”
Claimant filed a new claim for a low-back injury occurring
on or about December 1, 2014.
Rosenbaum did not reexamine claimant, but reviewed
claimant’s MRI and agreed that she had pathology at L3-4,
L4-5, and L5-S1. He further opined that the spondylosis at
L4-5 and L5-S1 was a preexisting condition. Rosenbaum
characterized the condition as arthritic and attributed it to
claimant’s genetics and age.
At SAIF’s request, claimant was also examined by
Dr. Hammel, who agreed with Rosenbaum that claimant’s
L4-5 and L5-S1 pathologies, including L5 radiculopathy,
involved preexisting spondylosis. Hammel concurred in a
letter prepared by SAIF’s counsel that claimant’s “injury
event in December 2014” was not the major cause of her need
for treatment for the lumbar pathology, and, to the extent
claimant required treatment after the December 2014 activity, “it would have been as a part of a combination of the
effects of the injurious exposure on or about December 1,
2014[,] and [claimant’s] preexisting, diagnosed, symptomatic
Cite as 315 Or App 588 (2021) 591
and arthritic conditions.” Hammel and Rosenbaum agreed
that claimant’s preexisting arthritic condition was the
major contributing cause of the need for treatment after the
December 2014 incident.
In contrast, Takacs concluded that the December
2014 work activity had caused a lumbar strain and had also
injured the L5 nerve root, causing claimant’s L5 radiculopathy to become constant.
An administrative law judge (ALJ) upheld SAIF’s
denial. The ALJ noted that SAIF had conceded that claimant met her “burden to prove that her December 2014 injury
was at least a material contributing cause of her need for
treatment and disability.” Therefore, the issue was whether
SAIF had “met its burden to prove that claimant’s December
2014 injury combined with a preexisting condition, and that
the injury was never the major contributing cause of her need
for treatment or disability.” Relying primarily on the opinions of Rosenbaum and Hammel, which the ALJ found to be
more persuasive, the ALJ concluded that claimant’s need for
treatment and disability were caused, in major part, by her
preexisting arthritic condition and not the December 2014
injury.
The board adopted and affirmed the ALJ’s order
with supplementation. The board confirmed that the “opinions of Drs. Rosenbaum and Hammel persuasively establish the presence of a ‘combined condition’; i.e., ‘two medical problems simultaneously.’ ” Specifically, the board found
that claimant’s combined condition “consisted of two medical problems (i.e., her preexisting spondylosis arthritic condition, and the low back/radicular symptoms caused by her
lifting activities at work).” The board further concluded that
SAIF had established that claimant’s December 2014 work
injury was not the major contributing cause of the need for
treatment of the combined condition. Claimant timely petitioned this court for judicial review.
On review, claimant contends that the board erred
in concluding that her preexisting conditions and the symptoms of those conditions brought on by the work injury “represented two medical problems” that constituted a legally
592 Interiano v. SAIF
cognizable combined condition. Claimant asserts that “courts
have never employed a ‘two medical problem’ legal analysis
to establish the existence of a combined condition,” and that
Brown v. SAIF, 361 Or 241,
391 P3d 773 (2017), “unequivocally establishes that a specific medical condition, as
that term has been defined by the courts, must combine
with a separate and distinct legally cognizable preexisting
condition.”
SAIF remonstrates that, in the context of an initial
claim, ORS 656.005(7)(a)(B) does not require that a medical condition be “separate and distinct” from the preexisting
condition. SAIF further contends that Brown is distinguishable, because it involved a “ceases denial” issued after SAIF
had given notice of acceptance of a specific medical condition,
which differs from the initial-claim context, where “nothing
has yet been ‘accepted’ and ‘no particular medical condition’
has been specified as ‘compensable.’ ” Alternatively, SAIF
contends that the board’s order should be affirmed as “right
for the wrong reason,” because claimant failed to carry her
burden of proving an “otherwise compensable injury” under
ORS 656.266(1) and (2)(a).1
We review the board’s order for substantial evidence and legal error. ORS 183.482(8)(a), (c). As explained
below, we conclude that the board erred in determining that
claimant’s preexisting condition—spondylosis—combined
with the symptoms of that condition brought on by claimant’s December 2014 work activities to result in a combined
condition.
1
ORS 656.266 provides, in part:
“(1) The burden of proving that an injury or occupational disease is compensable and of proving the nature and extent of any disability resulting
therefrom is upon the worker. The worker cannot carry the burden of proving
that an injury or occupational disease is compensable merely by disproving
other possible explanations of how the injury or disease occurred.
“(2) Notwithstanding subsection (1) of this section, for 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 315 Or App 588 (2021) 593
To establish a compensable injury, a claimant must
prove (1) that the claimant suffered an injury in the course
of employment, and (2) that that injury either resulted in
disability or death or was at least severe enough to require
medical services. Horizon Air Industries, Inc. v. Davis-Warren, 266 Or App 388, 394,
337 P3d 959 (2014); ORS
656.005(7)(a) (defining “compensable injury”). If a compensable injury combines with a preexisting condition to cause
or prolong disability or a need for treatment, that gives rise
to a combined condition.
ORS 656.005(7)(a)(B) provides:
“If an otherwise compensable injury combines at any
time with a preexisting 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.”
Thus, a combined condition is “compensable only if the
major contributing cause—not just the material cause—of
the resulting combined condition is the compensable injury.”
Brown, 361 Or at 251 (emphasis omitted); see also Hopkins
v. SAIF,
349 Or 348, 351,
245 P3d 90 (2010) (explaining that
a “combined condition is compensable only if the compensable injury is the major contributing cause of the disability or need for treatment”). The employer bears the burden
of proving that a combined condition is not compensable by
establishing that a “worker has a preexisting condition and
that the compensable injury is not the major contributing
cause of the disability or need for treatment.” Hopkins,
349
Or at 352 (explaining the operation of ORS 656.266(2)(a)).
In Carrillo v. SAIF, 310 Or App 8, 12,
484 P3d 398,
rev den,
368 Or 560 (2021), we recently addressed “whether
a combined condition can derive from a preexisting condition and its symptoms.” In that case, the claimant filed an
injury claim based on symptoms that he had experienced
in his left shoulder after a day of heavy lifting at work.
Id. at 9. SAIF denied the claim, asserting that the work
injury had combined with preexisting conditions and that
594 Interiano v. SAIF
the work injury was not the major contributing cause of the
combined condition. Id. The claimant requested a hearing
and argued before the board that a combined condition consisted of two separate medical conditions that combined and
that a symptomatic flareup of a preexisting condition cannot combine with the preexisting condition itself. Id. at 11.
The board determined that the “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.” Id. at
10. Although the board determined that 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.” Id. at 11 (emphasis omitted).
On review, we disagreed with the board’s decision.
We explained that, as noted in Brown, the “term ‘combined
condition’ suggests two separate conditions that combine.”
Carrillo, 310 Or App at 11 (emphasis omitted). Therefore,
because “[a] preexisting condition and its symptoms are
not separate conditions,” we concluded that the board erred
in determining that the symptoms of the claimant’s preexisting shoulder condition combined with the preexisting
condition itself to give rise to a combined condition claim.
Id. at 12.
We reach the same conclusion in this case. In determining that claimant had a combined condition, the board
did not identify two separate conditions; rather, the board
concluded that claimant’s preexisting spondylosis arthritic
condition combined with the symptoms of that condition
when she was lifting at work in December 2014. The board
relied on the opinions of Rosenbaum and Hammel to conclude that claimant’s combined condition “consisted of two
medical problems (i.e., her preexisting spondylosis arthritic
condition, and the low back/radicular symptoms caused
by her lifting activities at work).” Similarly, the board considered “Hammel’s detailed description of claimant’s preexisting conditions with L5 radiculopathy, and the need for
treatment of those conditions caused by the work injury,
Cite as 315 Or App 588 (2021) 595
to represent two medical problems that constitute a ‘combined condition.’ ” The medical opinions of Rosenbaum and
Hammel, however, do not describe the existence of two separate conditions. Because a preexisting condition and its
symptoms are not separate conditions, the board erred in
determining that claimant had a combined condition within
the meaning of ORS 656.005(7)(a)(B).2
Reversed and remanded.
2
As noted earlier, SAIF argues that, even if we agree with claimant’s arguments, we should affirm the board’s order under the “right for the wrong reason”
doctrine because claimant failed to carry her burden of proving an “otherwise
compensable injury.” We reject that argument without discussion.
