703
Argued and submitted November 30, 2021, reversed and remanded
January 5, 2022
In the Matter of the Compensation of
Terry D. Gibson, Claimant.
Terry D. GIBSON,
Petitioner,
v.
ESIS
and Georgia Pacific Consumer
Product - Georgia Pacific,
Respondents.
Workers’ Compensation Board
1904433, 1901856, 1901393, 1805238;
A174561
504 P3d 1270
Claimant petitions for judicial review of an order of the Workers’ Compensation Board (board) upholding employer’s denial of his new or omitted condition
claim. In upholding employer’s denial, the board employed a combined-condition
analysis. On review, claimant asserts that the board applied the wrong legal
standard when determining that he had a legally cognizable combined condition. Alternatively, he asserts that the board’s determination that there was a
legally cognizable combined condition is not supported by substantial evidence or
substantial reason. Held: The board applied the wrong legal standard by failing
to acknowledge and apply the limited definition of a medical condition for the
combined-condition analysis. Furthermore, if and to the extent it applied the
correct standard, the board’s order was not supported by substantial reason.
Reversed and remanded.
Jodi Anne Phillips Polich argued the cause for petitioner.
Also on the briefs was the Law Offices of Jodie Anne Phillips
Polich, P.C.
Rebecca A. Watkins argued the cause for respondents.
Also on the brief were David Levine and SBH Legal.
Before Kamins, Presiding Judge, and Lagesen, Chief Judge,
and Landau, Senior Judge.
LAGESEN, C. J.
Reversed and remanded.
704 Gibson v. ESIS
LAGESEN, C. J.
Claimant petitions for judicial review of an order
of the Workers’ Compensation Board (board) upholding
employer’s denial of his new or omitted condition claim for
osteoarthritis. In upholding employer’s denial, the board
employed a combined condition analysis. On review, claimant asserts that the board applied the wrong legal standard
when determining that claimant had a legally cognizable
combined condition. Alternatively, claimant asserts that the
board’s determination that there was a legally cognizable
combined condition is not supported by substantial evidence
or substantial reason. We conclude that the board applied
the wrong legal standard and, if and to the extent that it
applied the correct standard, its order is not supported by
substantial reason. Accordingly, we reverse the board’s
order and remand.
Except as noted the facts are not disputed. Claimant
slipped and fell at work, hurting his knee. Employer accepted
a “knee strain condition, classified as non-disabling.” Later,
claimant requested that employer accept osteoarthritis and
acute bone marrow lesions as new or omitted conditions.
Employer denied both conditions, and claimant requested a
hearing before an administrative law judge (ALJ); the ALJ
affirmed the denials. The ALJ determined that the osteoarthritis was a preexisting condition not compensably
related to the work injury. The ALJ further determined that
the work injury combined with the preexisting osteoarthritis and that the noncompensable osteoarthritis is the major
contributing cause of claimant’s disability or need for treatment related to the combined condition, including the recommended knee replacement surgery. Accordingly, the ALJ
found “insufficient causal relationship between the accepted
injury and the proposed medical procedure.” With regard
to the bone marrow lesions, the ALJ determined that there
was insufficient evidence to establish that they existed, and,
if they existed, no evidence that they were caused by the
work incident.
Claimant appealed to the board, which adopted
and affirmed the ALJ’s order, supplementing the reasoning.
The board explained that the work injury caused claimant’s
Cite as 316 Or App 703 (2022) 705
osteoarthritic knee to become symptomatic, resulting in a
combined condition of claimant’s preexisting osteoarthritis
and the symptoms triggered by the work injury:
“Here, we consider Dr. Baldwin’s description of claimant’s preexisting left knee tri-compartmental osteoarthritis and the onset of symptoms due to the April 2018 work
injury to represent two medical problems that constitute
a ‘combined condition.’ … Dr. Baldwin explained that
claimant’s work injury, which hyperextended his knee,
caused the rough surfaces of the underlying osteoarthritis
to ‘pop over one another’ resulting in left knee pain, but
that at all times the major contributing cause of the need
for treatment was claimant’s preexisting left knee osteoarthritis and not the work injury. As such, Dr. Baldwin’s
opinion supports the existence of a combined condition (i.e.,
the work-related knee pain combined with the underlying
preexisting osteoarthritis condition).
“Further, the existence of a combined condition is also
supported by the opinion of claimant’s treating physician,
Dr. Kretzler. He described the April 2018 work injury as
‘exacerbat[ing]’ claimant’s preexisting tricompartmental
osteoarthritis, and causing claimant’s left knee to be symptomatic. That opinion, also, is consistent with the existence
of a combined condition consisting of ‘two medical problems’
existing simultaneously (i.e., the preexisting osteoarthritis
and the work-related exacerbation).”
(Internal citations omitted.) The board concluded further, as
had the ALJ, that the major contributing cause of the need
for treatment of the combined condition that it had identified
was the preexisting osteoarthritis, such that the treatment
of the combined condition was not compensable. Claimant
petitioned for judicial review.
On review, employer and claimant agree that the
osteoarthritis is the major contributing cause of claimant’s
need for a knee replacement surgery but dispute whether
that condition, and thus the surgery, are compensable. As
we understand his arguments on review, claimant disputes the board’s determination that his osteoarthritis is
a noncompensable preexisting condition and that his work-related injury combined with the preexisting osteoarthritis
to create a combined condition. He asserts that his pain,
706 Gibson v. ESIS
disability, and need for treatment are all symptoms of his
osteoarthritis that were brought on by the work incident,
that his osteoarthritis is the only cognizable medical condition, and that the osteoarthritis should have been found
compensable based on the role the work injury played in
causing his osteoarthritis to become symptomatic. Insofar
as the board found that his symptoms combined with his
preexisting osteoarthritis, claimant contends that the board
misapplied ORS 656.005(7)(a)(B), the statute concerning combined conditions. Employer argues to the contrary that the
board was correct. In employer’s view, the accepted knee
strain that resulted from the work incident was a new medical condition that combined with and exacerbated claimant’s
preexisting osteoarthritis. Alternatively, employer argues that
the combined condition can be constituted by the preexisting
condition and its worsening.
To the extent claimant’s arguments challenge the
board’s interpretation of the statute, our review is to determine whether the board “erroneously interpreted a provision of law.” ORS 183.482(8)(a). To the extent that claimant
asserts that the board’s order is not supported by substantial
reason, we review to determine “whether the order supplies
the necessary reasoning” to connect the board’s findings of
fact with its conclusions of law. United Academics of OSU v.
OSU, 315 Or App 348, 356,
502 P3d 254 (2021).
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.”
As we—and the Supreme Court—have explained,
“the term ‘combined condition’ [in ORS 656.005(7)(a)(B)]
suggests two separate conditions that combine.” Carrillo
v. SAIF, 310 Or App 8, 11,
484 P3d 398, rev den,
368 Or
560 (2021) (citing Brown v. SAIF,
361 Or 241, 255-56,
391
P3d 773 (2017); ORS 656.005(7)(a)(B); internal quotation
Cite as
316 Or App 703 (2022) 707
marks omitted; emphasis in original). Said another way,
“[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.”
Id.
For purposes of this analysis, only some things
count as “conditions” that can result in a legally cognizable
combined condition. In Young v. Hermiston Good Samaritan,
223 Or App 99, 107,
194 P3d 857 (2008), for example, we
held that symptoms of a condition, on their own and distinct
from their underlying medical condition, cannot amount to
a compensable condition. See also Interiano v. SAIF,
315 Or
App 588, 593-94,
502 P3d 224 (2021) (a preexisting condition
and its symptoms are not separate conditions and cannot
combine). Similarly, we also have held that the worsening of
a preexisting condition cannot be a separate condition from
(and thus cannot combine with) the underlying preexisting
condition to establish a legally cognizable combined condition. Carrillo,
310 Or App at 11-12 (collecting cases).
That line of cases establishes that two distinct conditions are required for a legally cognizable combined condition. Consequently, the board errs if it determines that
the symptoms of a preexisting condition, the worsening of a
preexisting condition, or an incident itself, as distinct from
a new medical condition, combined with the preexisting
condition to give rise to a combined condition within the
meaning of ORS 656.005(7)(a)(B). Carrillo, 310 Or App at
11; Interiano,
315 Or App at 593-94; Pedro v. SAIF,
313 Or
App 34, 38-39,
495 P3d 183 (2021).
Resisting this line of authority, employer argues
that “nothing prevents the two merging components, new
and old, from being a condition and a worsened condition.”
We do not read our case law to allow that approach. Even
if it does, though, the board determined that the evidence
was insufficient to “establish that claimant has sustained
a pathological worsening of his preexisting osteoarthritis
condition.” Employer has not disputed that factual finding.
Further, to the extent employer may be relying on ORS
656.225 to support its position, that statute is not relevant
to a combined-condition analysis, which is what the board
applied here to deny compensability. That statute does not
708 Gibson v. ESIS
address combined conditions but, instead, makes compensable treatment “solely directed to a worker’s preexisting condition” if a work event “constitute[s] the major contributing
cause of a pathological worsening of the preexisting condition.” See Arms v. SAIF, 268 Or App 761, 770-71,
343 P3d
659 (2015). Employer also cites ORS 656.802(2)(b), which
addresses combined conditions in the context of occupational
diseases, but that statute is also irrelevant to the question
before us because, in adopting the ALJ’s findings, the board
rejected employer’s contention that claimant’s claim should
be analyzed as an occupational disease, and employer has
not cross-assigned error to that determination. Although
employer’s arguments raise questions about the ultimate
compensability of claimant’s exacerbated osteoarthritis,
they do not lend support for the board’s handling of the
combined-condition issue in this case, which does not track
our case law.
In the order at issue, the board correctly articulated
the general requirements for a combined condition but failed
to acknowledge and apply the limited definition of a medical condition for the combined-condition analysis. The ALJ
referred only to claimant’s “April 9, 2018, injury” as the condition that combined with his preexisting osteoarthritis to
create a combined condition but did not identify a particular
medical condition. See Pedro, 313 Or App at 38 (explaining
that a combined condition involves the combining of two
medical conditions). The board attempted to clarify what
the second condition was, at various points characterizing
it as (1) “the onset of symptoms due” to the work injury, (2)
the thing “which hyperextended his knee, caus[ing] the
rough surfaces of the underlying osteoarthritis to ‘pop over
one another,’ ” (3) “the work-related knee pain,” and (4) “the
work-related exacerbation.”
As discussed above, none of those characterizations
amount to a separate medical condition which could have
combined with the preexisting osteoarthritis. Symptoms of
a preexisting condition triggered by a workplace incident
cannot constitute a medical condition separate from the
preexisting condition. Interiano, 315 Or App at 594. The
board does not identify hyperextension as an injury, and the
Cite as
316 Or App 703 (2022) 709
medical evidence does not allow for the conclusion that a
hyperextension is a distinct medical condition, as distinct
from the process that caused claimant’s knee pain. Incidents
are not separate medical conditions. Brown,
361 Or at
255-71. Exacerbation of a preexisting condition and worsening of a preexisting condition also are not separate medical conditions. Carrillo,
310 Or App at 12. As a result, to
the extent that the board determined that claimant had a
legally cognizable combined condition based on its findings
that claimant’s symptoms combined with the osteoarthritis,
that the work incident exacerbated claimant’s osteoarthritis, or that the hyperextension of claimant’s knee combined
with the osteoarthritis, the order reflects that the board
applied an incorrect legal standard.
As for the board’s finding that claimant’s work-related knee pain, caused by his fall at work, in combination with the osteoarthritis resulted in a legally cognizable combined condition, we allow for the possibility that the
work-related knee pain could constitute a separate medical
condition, or correspond to one, as distinct from the symptoms of claimant’s preexisting osteoarthritis. To the extent
the board reached the conclusion that the knee pain was a
separate medical condition, however, its order does not supply the reasoning for the conclusion that the knee pain is a
separate medical condition as distinct from symptoms of a
preexisting condition. Furthermore, to the extent the board
reached the conclusion that the knee pain combined with
the osteoarthritis, its order does not supply the reasoning for
that conclusion, i.e., how they combined. Pedro, 313 Or App
at 39-40 (holding that the record did not provide evidence on
how the new injury combined with the preexisting arthritis,
precluding a finding of a combined condition). That lack of
reasoning renders the correctness of those determinations
insufficiently reviewable. For that reason, to the extent the
board’s order rests on a determination that the knee pain
and the osteoarthritis resulted in a legally cognizable combined condition, it is not supported by substantial reason.
United Academics of OSU,
315 Or App at 355-56 (“[W]hether
an agency’s ultimate conclusions from its findings of fact
are supported by substantial reason turns on whether the
agency’s order supplies a rational connection between the
710 Gibson v. ESIS
facts and the legal conclusions it draws from them such that
the conclusions are sufficiently reviewable by an appellate
court.” (Internal quotation omitted.)).
Reversed and remanded.
