14
Argued and submitted August 31, 2021, reversed and remanded April 13,
petition for review denied September 1, 2022 (370 Or 212)
In the Matter of the Compensation of
Robert J. Culley, Claimant.
Douglas M. SULLIVAN,
Personal Representative of
the Estate of Robert J. Culley,
Petitioner,
v.
SAIF CORPORATION
and Department of Justice,
Respondents.
Workers’ Compensation Board
1801533, 1704566; A174525
510 P3d 255
Claimant, the personal representative of the deceased worker’s estate, seeks
review of an order of the Workers’ Compensation Board upholding SAIF’s denial
of his claim for left L5-S1 radiculopathy. He contends that the board’s order is
not supported by substantial evidence or substantial reason, because the board
failed, without reason, to defer to the opinion of the worker’s treating physician
and did not adequately explain its conclusion that the treating physician’s opinion had been based on an incomplete medical history and inaccurate information.
Held: The evidence in the record did not support the board’s several rationales
for discounting the treating physician’s opinion. Thus, the board’s findings were
not supported by substantial evidence or substantial reason, and the Court of
Appeals reversed and remanded the board’s order for reconsideration.
Reversed and remanded.
Dale C. Johnson argued the cause and filed the briefs for
petitioner.
Daniel Edward Walker argued the cause for respondents.
On the brief was Kim Shubin.
Before Tookey, Presiding Judge, and Egan, Judge, and
Aoyagi, Judge.*
EGAN, J.
Reversed and remanded.
______________
* Egan, J., vice Armstrong, S. J.
Cite as 319 Or App 14 (2022) 15
EGAN, J.
Claimant, the personal representative of the deceased
worker’s estate, seeks review of an order of the Workers’
Compensation Board upholding SAIF’s denial of his claim
for left L5-S1 radiculopathy. He contends that the board’s
order is not supported by substantial evidence or substantial reason, because the board failed, without reason, to
defer to the opinion of the worker’s treating physician and
did not adequately explain its conclusion that the treating
physician’s opinion had been based on an incomplete medical history and inaccurate information. In reviewing the
board’s order for substantial evidence and substantial reason, ORS 656.298(7); 183.482(8)(c), we agree with claimant
that the board erred and reverse and remand.
This case presents a true battle of the experts as
to whether Robert Culley, the deceased worker, had L5-S1
radiculopathy, and whether a work incident was a material cause of the alleged radiculopathy. Beginning in 2013,
Culley suffered from preexisting bilateral sciatica and
low back pain, with pain radiating down both legs to the
knees. Culley saw Dr. Essex, his primary care physician,
in July 2013 for symptoms of pain in both legs. Essex diagnosed bilateral sciatica. An MRI in 2013 showed “multilevel
disc disease producing relatively minimal canal, but up to
moderate neuroforaminal narrowing as described above.”
There were disc bulges at L3-4 and L4-5 which minimally
indented the ventral aspect of the thecal sac. There was
nothing remarkable with respect to L5-S1.
Beginning in April 2014, Essex referred Culley to
Dr. Zilkoski for treatment of constant pain in his left foot,
which began after treatment for a left knee Baker’s cyst.
At that time, Culley also was experiencing low back pain,
and he sought and obtained several months of chiropractic treatment for his foot and for low back pain, including
mild to moderate pain in the sacrum region. A chiropractic
exam revealed positive left leg straightening for low back
pain as well as decreased sensation in the dermatomes of
L5 and S2. The chiropractor’s primary diagnosis was “lumber spine sprain/strain.” Culley’s foot symptoms gradually
resolved.
16 Sullivan v. SAIF
In July 2015, Culley, who worked for employer
Oregon Department of Justice as a detective, was injured
at work when, as he walked in employer’s parking lot, he
was hit by a bicycle. The bicycle hit the back of Culley’s left
side, and he fell to the pavement on his right leg and scraped
his knees and elbows. Culley reported pain in his left ankle
but initially he did not report any foot or back pain. SAIF,
employer’s workers’ compensation insurer, accepted a claim
for left knee strain, right knee abrasion, left knee abrasion,
left elbow abrasion, and left foot comminuted fracture of the
3rd proximal phalanx.
In early September 2015, Culley saw Dr. Yao for
his knees and reported that for about two weeks he had
been experiencing sharp pain and numbness in both feet,
primarily on the left. Yao noted that Culley had previously
seen Zilkoski “for this,” a reference to Zilkoski’s treatment of claimant for foot pain in 2014. Yao referred Culley
to Dr. McCormick, an orthopedist, for his foot pain, who
referred Culley for a nerve conduction study, which showed
that Culley’s left lateral plantar motor nerves “showed no
response.” McCormick stated in the chart note of December 19,
2015, that diagnostic imaging confirmed a diagnosis of neuralgia and neuritis, likely due to Culley’s work injury. In
February 2016, Culley began to report pain and numbness
in his left great toe.
In June 2016, Culley saw his primary care doctor,
Essex, for left foot pain. Essex noted that he had previously
treated Culley for very similar symptoms in 2013 not related
to work.
In October 2016, on Yao’s referral, Culley began
seeing Dr. Herring, a neurologist, for his continued left foot
pain and numbness. Culley reported to Herring that, about
a year before, he had experienced shooting electrical pains
into the left big toe, but that the symptoms had resolved
on their own and were not present at the time of the work
injury.
Herring examined Culley and noted tenderness in
the left lateral lumbosacral region with positive straight leg
raising on the left. Herring identified symptoms of radiculopathy, including decreased pinprick at the bottom of
Cite as 319 Or App 14 (2022) 17
Culley’s left foot and the left lateral foot, with decreased
pinprick throughout, including the lower leg. Herring also
noted weakness in Culley’s left foot and leg. Herring concluded that, although Culley had not experienced low back
pain at the time of the work injury, Culley’s symptoms were
the result of a radiculopathy originating at L5-S1, with the
work injury as the most likely cause. Herring recommended
further imaging.
In November 2016, Herring’s associate Dr. Balm, a
neurophysiologist, performed an electrodiagnostic study of
Culley’s left foot. Balm reported findings of “electrophysiologically mild, old, or chronic inactive left S1 radiculopathy.”
He concluded that the study provided no electrophysiologic
evidence for the presence of any ongoing active radiculopathy, nor for the presence of lumbosacral plexopathy, sciatica
or other mononeuropathy affecting the left lower extremity.
Culley also had an MRI of the lumbar spine in
November 2016. That imaging showed mild multilevel spondylosis and mild L2-3 spinal stenosis with moderate bilateral lateral recess narrowing and no foraminal narrowing.
All levels had facet degenerative changes and some degree of
central disc bulging with no compression of the nerve roots.
During and after that MRI, claimant began to experience
pain in his low back on the left and pain radiating into his
leg.
Herring reported that, although the 2016 MRI did
not show any definitive etiology for Culley’s symptoms, he
was still of the opinion that Culley’s symptoms and findings were suggestive of radiculopathy/nerve root irritation.
Because Culley’s symptoms persisted and had begun to
include back pain, Herring recommended more imaging and
the opinion of a spine surgeon. An x-ray confirmed mild
degenerative changes of the lumbar spine.
Herring continued to believe that the onset of Culley’s
increased radiculopathy symptoms was related to his work
injury.
Dr. Rosenbaum examined Culley on SAIF’s behalf in
October 2017 and disagreed. Culley reported to Rosenbaum
that he was experiencing left foot numbness and low back
18 Sullivan v. SAIF
pain, which had developed after his work injury. Rosenbaum’s
exam revealed “no true spasm” and moderate pain to palpation at L5-S1 and L4-5, moderate left trochanteric pain,
bilateral sacroiliac pain and moderate left sciatic notch
pain. Rosenbaum believed that the disc bulge findings on
the November 2016 MRI and x-ray were consistent with the
degenerative process with no acute findings. He said that
Culley’s various MRIs did not reveal a pathology that would
indicate nerve root compression, displacement, or impingement at any level. He stated further that neither his chart
notes nor those of any other examiner indicated lumbar
radiculopathy in a specific dermatomal pattern as evidenced
by motor, sensation, or reflex loss. He did not see clinical
signs of radiculopathy and was of the opinion that Culley’s
lumbar condition was preexisting.
Herring rejected Rosenbaum’s opinion as having
been based on an incomplete examination, or an inaccurate recording of that examination, and maintained that
Culley’s symptoms were radiculopathy “coincident with a
work injury where he was struck by a heavy bicyclist with a
mechanism of injury that would certainly be consistent with
a subsequent lumbar spine injury.”
In October 2017, SAIF denied Culley’s request to
accept left L5-S1 lumbar radiculopathy as a new/omitted
medical condition, and Culley filed a request for hearing.
Culley underwent an MRI in November 2017, which
had findings similar to the November 2016 MRI. Findings
from an MRI in November 2018 were also unchanged.
Dr. Button, an orthopedic surgeon, examined Culley
at SAIF’s request. He explained that radiculopathy means
irritation of a cervical or lumbar nerve that produces pain,
weakness, and/or numbness radiating down an extremity.
Button found no complaints of low back pain or evidence
of any pain, weakness, or numbness radiating down the
extremity (except for the foot numbness) until Culley saw
Herring 14 months after the injury. Button stated that,
because there are many causes of numbness in an extremity
and the cause is often unknown, to support a diagnosis of
radiculopathy, one needed to have “either electrical support
from a nerve test, a history or exam consistent with pain,
Cite as 319 Or App 14 (2022) 19
weakness, or numbness radiating down a leg, or it should
generally be in conjunction with nerve compression seen in
the lumbar spine.” Button opined that, because MRI testing
had not revealed nerve root compression, and Culley had
none of the symptoms typically present with radiculopathy
until 14 months after the injury, it was “medically highly
unlikely” that Culley developed radiculopathy from the work
incident. Button diagnosed lumbar spondylosis, preexisting,
without nerve root compression to explain any motor or sensory changes in the lower extremities. Button opined that
Culley’s symptoms were related to preexisting degenerative
disease.
Herring disagreed with Button. Herring noted that
while it was true there was no MRI evidence of nerve root
compression, compression was not the only source of radiculopathy. He explained that, in the absence of obvious
compression, sometimes a tear in the annulus fibrosis will
release disc fluid with an inflammatory component that will
provoke an auto-immune reaction resulting in radiculopathy of the nerve root, and that such tears do not necessarily show up on MRIs. In Culley’s case, he believed that the
bicycle incident was of sufficient force to “probably cause a
small rent in his annulus which leaked irritants and caused
chronic inflammatory changes around the S1 nerve root.”
Herring opined that the work injury was the major contributing cause of Culley’s radiculopathy condition. He based
his opinion on the mechanism of injury (a “forceful event”),
Culley’s consistent symptoms and credible examinations,
the transient relief of symptoms that Culley experienced
after receiving anti-inflammatory steroid injections, and
Balm’s abnormal EMG findings that showed objective evidence of S1 radiculopathy. Although Culley had had prior
left toe issues, Herring noted that the problem had resolved
and that Culley was asymptomatic at the time of the work
injury. In light of Culley’s symptoms of left foot weakness,
numbness and pain, a positive straight leg test on the left,
and the EMG showing S1 radiculopathy, Herring concluded
that Culley had a pattern of nerve root symptoms and findings consistent with nerve root irritation, and that, to a
reasonable probability, Culley’s complaints were consistent
with a lumbar radiculopathy related to the work injury.
20 Sullivan v. SAIF
An administrative law judge (ALJ) upheld SAIF’s
denial of the claim. The ALJ directed his analysis to the
proof of causation, reasoning that claimant had failed to
establish that work was a material contributing cause of
the claimed radiculopathy. The ALJ explained that Herring
had not addressed claimant’s prior low back and sciatic
symptoms. The board, in adopting the ALJ’s order with supplementation, reasoned that the deference commonly given
to a treating physician’s diagnosis was not applicable in this
case, in view of the fact that Herring did not begin treating Culley until 14 months after the injury. The board discounted Herring’s opinion for several additional reasons.
For example, the board reasoned that the record
did not show that Herring was aware that Culley had suffered and been treated for similar sciatic symptoms in
2013, including left foot pain; thus, the board concluded
that Herring’s opinion was based on an incomplete medical history. The board further reasoned that Herring had
mistakenly relied on a chart note referencing treatment
of a complaint about foot numbness two weeks after the
injury when, in fact, the treatment had occurred before
the injury; thus, the board concluded that Herring’s opinion was inaccurate. Finally, the board discounted Herring’s
opinion as unpersuasive, reasoning that Herring had not
sufficiently responded to Button’s contrary opinion and had
not adequately explained “his conclusion by describing how
plaintiff’s signs and symptoms on examination close to the
time of the injury” “fit within the dermatomal pattern for
the left L5-S1 radiculopathy condition.” Having discounted
Herring’s opinion, the board concluded that Culley had not
met his burden of proof to establish that the symptoms of
radiculopathy are work-related.
On judicial review, claimant contends that the board
erred in rejecting Herring’s opinion. As Culley’s treating
physician, claimant contends, Herring’s opinion was entitled to deference in his evaluation of Culley’s current symptoms, whether or not he began treating Culley immediately
after the injury. Cf. Dillon v. Whirlpool Corp., 172 Or App
484, 489,
19 P3d 951 (2001) (“The Board properly may or
may not give greater weight to the opinion of the treating
physician, depending on the record in each case.”) Claimant
Cite as
319 Or App 14 (2022) 21
further challenges the board’s conclusion that the record did
not show that Herring had a complete medical record, pointing out that Herring had for his review Culley’s full medical
history, including records from his primary care physician,
as well as all of the subsequent medical records. Finally,
claimant challenges the board’s conclusion that Herring’s
causation opinion was based on inaccurate information,
asserting that the board’s conclusion is a misreading of the
medical record. Claimant asserts that, as a specialist in the
field of neurology who had treated Culley for his symptoms
for two years, Herring was in the best position to evaluate
the cause of Culley’s symptoms. See Weland v. SAIF,
64 Or
App 810, 814,
669 P2d 1163 (1983) (“When the medical evidence is divided, we have tended to give greater weight to
the conclusions of a claimant’s treating physician, absent
persuasive reasons not to do so.”).
We have reviewed the record and agree with claimant that the board misread it with regard to Herring’s reference to Yao’s report of symptoms two weeks after the injury.
The record requires the finding that Herring’s opinion was
based on accurate information and that Culley did complain
of foot pain to Yao two weeks after the injury.
We also agree with claimant that the board erred in
determining that Herring had an incomplete record because
he did not refer in his reports to Culley’s history of and
treatment for sciatic in 2013 and may not have been aware
of Culley’s prior history of sciatica. The record requires a
finding that Herring had for his review all of Culley’s medical records and was aware of his history.
Finally, we agree with claimant’s contention that
the board erred in discounting Herring’s opinion because he
did not adequately explain his disagreement with Button’s
view that Culley had not experienced symptoms of radiculopathy. Herring’s reports do explain his reasoning that,
despite the absence of back symptoms immediately following the injury, Culley’s history and diagnostics, which
included a positive leg straightening test, decreased pinprick in the left foot and leg, indicative of sensory loss, and
an EMG showing S1 radiculopathy, were indicative of L5-S1
radiculopathy.
22 Sullivan v. SAIF
SAIF argues that whatever the board’s rationale
in rejecting Herring’s opinion relating to the existence of
L5-S1 radiculopathy, the record supports the board’s determination as to a lack of causation. SAIF is correct that
the medical record includes evidence that, before the 2015
injury, in 2014, Culley was suffering from low back symptoms on the left as well as symptoms that Herring identified
as radiculopathy, including decreased sensation along the
L5 dermatome. The record also includes medical evidence
from Rosenbaum and Button that Culley’s symptom complex
after the work injury did not constitute radiculopathy. For
those contradictory reasons, SAIF argues, this court should
conclude that the board’s order upholding SAIF’s denial of
the claim is supported by substantial evidence.
As to the issue of deference to the opinion of the
treating physician, SAIF points out correctly that it is not
a rule of law; rather, it is a method of factual analysis that
the board is free to apply in its judgment. In Dillon, we
explained that, in view of the fact that the court no longer
reviews the board’s orders de novo, but for substantial evidence, the question of deference to the treating physician
is for the board, as a factual analytical construct. We must
affirm the board’s deference determination if it is supported
by substantial evidence. Id. at 488.
In Dillon, 172 Or App at 489, we went on to explain
the nature of substantial evidence review, quoting from this
court’s watershed opinion in Armstrong v. Asten-Hill Co.,
90
Or App 200,
752 P2d 312 (1988). As relevant here, the takeaway from Armstrong is that, to be supported by substantial
evidence, the board’s order must indicate what findings the
board makes and how those findings led the board to its ultimate conclusion—that is, it must be supported by substantial reason. Armstrong,
90 Or App at 206 (“The requirement
of findings leads to a requirement that the agency state its
reasoning.”); see Guild v. SAIF,
291 Or App 793, 800,
422
P3d 376 (2018) (“The board can reject an expert’s medical
opinion as unpersuasive, but it must explain its reasons for
doing so.”); see also Minor v. SAIF,
290 Or App 537, 545,
415
P3d 1107 (2018) (“In reviewing for substantial evidence, we
must also determine whether the board’s analysis comports
with substantial reason. To satisfy that requirement, the
Cite as
319 Or App 14 (2022) 23
board must ‘provide a rational explanation of how its factual
findings lead to the legal conclusions on which the order is
based.’ ” (Quoting Arms v. SAIF,
268 Or App 761, 767,
343
P3d 659 (2015) (citing Drew v. PSRB,
322 Or 491, 500,
909
P2d 1211 (1996)).
As we pointed out in Guild, this court does not
“reweigh the evidence or ‘substitute our judgment for that
of the board as to any issue of fact supported by substantial evidence.’ ” 291 Or App at 796 (quoting Elsea v. Liberty
Mutual Ins.,
277 Or App 475, 483,
371 P3d 1279 (2016)); ORS
183.482(7). Nevertheless, the factfinder must meticulously
review the entire record to correctly decide a case. If the
board makes a finding and conclusion based on one doctor’s
opinion, then the finding and conclusion must be based on
an analysis of the entirety of the information provided by
that doctor. Guild,
291 Or App at 798-800. If it is not, then
the order lacks substantial evidence and substantial reason.
See Garcia v. Boise Cascade Corp.,
309 Or 292, 296,
787 P2d
884 (1990) (“An assertion of a finding of fact as part of an
explanation for disregarding evidence is subject to attack
if that fact relied upon is not, itself, supported by substantial evidence.”). That requirement makes a difference in this
case: The board’s findings that are not based on substantial
evidence led it to misapply the factual analytical model concerning deference to Herring, the treating physician.
In Garcia, the court said:
“In cases where evidence is rejected by the [board], and
such action purports to be based on facts, it is appropriate
for the reviewing court to examine whether the [board’s]
decision to disregard or discount the evidence in the record
is supported by substantial evidence. Put another way: An
assertion of a finding of fact as part of an explanation for
disregarding evidence is subject to attack if that fact relied
upon is not, itself, supported by substantial evidence.”
309 Or at 296. Under our standard of review, it is not appropriate for us to correct the board’s findings, but it is incumbent upon us to point out errors in the board’s analysis that
could have affected the outcome of the case. Guild,
291 Or
App at 796. As we have determined, the evidence in the
record does not support the board’s several rationales for
24 Sullivan v. SAIF
discounting Herring’s opinion. Thus, we conclude that the
board’s findings, including its rejection of the treating physician’s opinion, are not supported by substantial evidence
or substantial reason. In light of that conclusion, we reverse
and remand the board’s order for reconsideration under the
correct standard relating to consideration of the treating
physician’s opinion.
Reversed and remanded.
