408
Argued and submitted December 17, 2021, affirmed August 24, 2022
In the Matter of the Compensation of
Guillermo Torres, Claimant.
Guillermo TORRES,
Petitioner,
v.
SAIF CORPORATION
and Torres Farms - Torres Contracting,
Respondents.
Workers’ Compensation Board
1800074; A174136
516 P3d 735
In this combined condition case, claimant seeks review of the Workers’ Compensation Board (board) order upholding SAIF’s denial of claimant’s injury claim
for a left foot condition. Claimant argues on review that the board erred by concluding that his otherwise compensable injury combined with a preexisting diabetic condition and that the work-related injury was not the major contributing
cause of his left foot condition and need for treatment. SAIF asks the Court of
Appeals to affirm the order and also raises a cross-assignment of error arguing that substantial evidence did not support the board’s finding that an otherwise compensable injury was at least a material contributing cause of the injury.
Held: The board properly weighed conflicting medical opinions to determine the
major contributing cause of claimant’s injury, a process which it explained in its
order. Thus, the board’s order was supported by substantial evidence and reason.
Affirmed.
Aaron E. Clingerman argued the cause for petitioner.
Also on the briefs was Pancic Law.
Daniel Edward Walker argued the cause and filed the
briefs for respondents.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
MOONEY, P. J.
Affirmed.
______________
* Pagán, J., vice DeHoog, J. pro tempore.
Cite as 321 Or App 408 (2022) 409
MOONEY, P. J.
This is a “combined condition” case in which claimant seeks review of the Workers’ Compensation Board (board)
order that affirmed the ALJ’s order upholding SAIF’s denial
of claimant’s injury claim for a left foot condition. Claimant
assigns error to the board’s conclusions that his otherwise compensable injury (1) combined with a preexisting
diabetic condition to cause the left foot condition and the
associated need for treatment, and (2) that the work-related
injury was not the major contributing cause of the combined
left foot condition and need for treatment. SAIF asks us to
affirm the order on review and, additionally, raises a cross-assignment of error arguing that substantial evidence did
not support the board’s finding that claimant’s “work activities were materially related to his injury claim.” We affirm
the board’s order in its entirety.
We review the board’s findings of fact for substantial evidence and reason. ORS 183.482(8)(c). “Substantial
evidence exists to support a finding of fact when the record,
viewed as a whole, would permit a reasonable person to
make that finding.” Id. When reviewing for substantial reason, “we determine whether the board provided a rational
explanation of how its factual findings lead to the legal conclusions on which the order is based.” Arms v. SAIF,
268 Or
App 761, 767,
343 P3d 659 (2015).
Claimant began working as a firefighter for SAIF’s
insured employer, Torres Farms - Torres Contracting (Torres
Farms) on August 6, 2017. There is no dispute that before
that employment began, claimant had been diagnosed with,
and treated for, diabetes with related complaints of numbness in his feet. There is also no dispute that claimant’s
work activities as a firefighter for Torres Farms included
walking on steep mountain terrain, while wearing boots,
for several hours per shift. Claimant developed a blister on
his left foot, which he noticed on August 20, 2017. He worked
until September 12, when he was no longer able to continue
due to left foot pain.
Claimant sought treatment for his left foot condition on October 10, 2017, from La Clínica de Nuestra Señora
de Guadalupe. The records from that encounter reflect that
410 Torres v. SAIF
he had “a small wound in left foot because of friction with
his boots.” He was referred to the emergency department
where he was found to have a “1.5 cm diameter ulcer” on
the “lateral aspect of the left foot over the fifth metatarsal
head.” Infection was suspected and he was admitted to the
hospital. Active infection in the left fifth toe was confirmed,
and claimant was later discharged with a plan for outpatient
antibiotics and wound debridement, with the hope of avoiding surgery. Dr. Stevens, a podiatrist, provided that course
of treatment, but the infection did not abate and, ultimately,
on December 13, 2017, Stevens amputated claimant’s left
fifth toe and accompanying fifth metatarsal, due to osteomyelitis of that toe and metatarsal.
While claimant was still undergoing outpatient
treatment, he completed a form requesting workers’ compensation benefits for a work-related injury, specifically identifying August 20, 2017, as the date of injury. He also identified
the blister on his left foot as the injury and attributed that
injury to his work as a firefighter. SAIF denied that claim
shortly after the amputation, reasoning that the left foot
ulcer was “not compensably related to [his] employment.”
Dr. Curosh, an endocrinologist, performed an independent medical examination at SAIF’s request and concluded that claimant’s work activities did not significantly
contribute to the ulcer. She further opined that “the major
causes of his left foot ulcer were poorly controlled diabetes,
ill-fitting shoes, failure to check his feet for blisters, failure
to treat the blister and change shoes, continuing to work
with a worsening blister, and failure to seek timely medical
care.” Curosh agreed with SAIF correspondence that stated:
“[T]he blister combined with the preexisting diabetes to
cause or prolong treatment in the sense the blister developed into a diabetic ulcer …. The diabetes actively contributed to the ulcer and the amputation because it causes
peripheral neuropathy and diminished sensation. Initially,
it caused [claimant] to not notice the blister and thus not
address it …. The diminished blood flow compromised
healing. Additionally, elevated blood sugars from the diabetes render the tissue more susceptible to bacterial infection.
It was a combination of the diabetic neuropathy, vascular
disease, and increased blood sugar levels that led to the
Cite as 321 Or App 408 (2022) 411
diabetic ulcer and eventual amputation. The work-related
blister may have precipitated these events, but was not the
major cause … of the eventual ulcer and amputation.”
Stevens, on the other hand, agreed with correspondence
from claimant’s counsel that claimant’s work activities were
the major contributing cause of the left foot condition and
eventual amputation. He also agreed that claimant’s diabetes made claimant more susceptible to an infection.
An injury is compensable when it arises “out of and
in the course of employment requiring medical services or
resulting in disability or death” and “if the work is a material contributing cause of the injury.” ORS 656.005(7)(a);
Coleman v. SAIF, 203 Or App 442, 446,
125 P3d 845 (2005).
“However, when an otherwise compensable injury combines
with a preexisting condition to cause or prolong a disability
or the need for treatment, the combined condition is compensable only if the otherwise compensable injury is the major
contributing cause of the disability or need for treatment.”
SAIF v. Harrison,
299 Or App 104, 106,
448 P3d 662 (2019)
(citing ORS 656.005(7)(a)(B)).
The claimant has the burden of proving the presence of an otherwise compensable injury. ORS 656.266(1).
However, in combined condition claims,
“[o]nce 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 need for treatment[.]”
ORS 656.266(2)(a). In this case, the board determined that
claimant had established an otherwise compensable injury
and that it was a material contributing cause of his need for
treatment, which shifted the burden to SAIF to prove that
the otherwise compensable injury, the blister, was not the
major contributing cause of claimant’s disability or need for
treatment. Determining the major contributing cause is a
complex medical question that must be answered through
expert medical opinion that evaluates “the relative contribution of different causes of an injury or disease and deciding which is the primary cause.” Dietz v. Ramuda, 130 Or
App 397, 401,
882 P2d 618 (1994), rev dismissed,
321 Or
412 Torres v. SAIF
416 (1995) (stating rule regarding combined conditions); see
Harrison, 299 Or App at 112. When reviewing the board’s
evaluation of medical opinions, “we do not substitute our
judgment for that of the board”; we determine only whether
the board’s evaluation was reasonable. SAIF v. Pepperling,
237 Or App 79, 85,
238 P3d 1013 (2010).
Here, the board first determined that claimant carried his burden to prove an otherwise compensable injury
was at least a material contributing cause of his need for
treatment. SAIF argues in its cross-assignment of error
that that determination is not supported by substantial evidence. We disagree. The board reviewed both Stevens’s and
Curosh’s opinions and found that they both supported the
finding that claimant’s work injury was at least a material
contributing cause of his need for treatment. Stevens concluded that the firefighting activities caused the blister and
the subsequent bone infections which were complicated by
claimant’s diabetes. Curosh acknowledged that the blister
itself was developed at work, which supports (or at least does
not necessarily undermine) Stevens’s opinion that claimant’s work was a material contributing cause. The board’s
order relies on the opinions of both medical experts in the
case and is based on substantial reason. Therefore, we reject
SAIF’s cross-assignment.
Next, the board determined that SAIF had proved
the existence of a combined condition and that the work injury
was not the major contributing cause of claimant’s need for
treatment. The board recognized that it was Stevens’s opinion that claimant’s diabetes did not actively contribute to
claimant’s foot condition, but only made him more susceptible to injury, which would make the diabetes insufficient
as a legally cognizable preexisting condition to categorize
the claim as a combined condition. Corkum v. Bi-Mart Corp.,
271 Or App 411, 422,
350 P3d 585 (2015); Murdoch v. SAIF,
223 Or App 144, 149-50,
194 P3d 854 (2008), rev den,
346
Or 361 (2009) (concluding that the claimant’s diabetes hindered his ability to heal but did not actively contribute to
the injury and was therefore not a preexisting condition
for the purposes of a combined condition claim). But, as
the board explained, Stevens initially described claimant’s
foot condition as a diabetic ulcer and not as a work-caused
Cite as
321 Or App 408 (2022) 413
blister, which the board identified as a significant inconsistency within Stevens’s opinion about causation that made
his opinion less persuasive than that of Curosh. Curosh
expressly found that claimant’s diabetes actively contributed to the injury because it caused his peripheral neuropathy and diminished sensation. The board was persuaded by
Curosh’s later clarification, consistent with her opinion as
originally stated, that the diabetes caused peripheral neuropathy, diminished sensation, and diminished blood flow,
and actively contributed to claimant’s need for treatment.
Ultimately, the board weighed Stevens’s and Curosh’s
opinions in analyzing the possible causes of claimant’s
injury to determine the primary cause, and it explained
that process in its order. Relying on the opinions of both
medical experts, it found that the blister was an otherwise
compensable injury that was a material contributing cause
of the need for treatment. In the face of conflicting medical opinions on the question of primary causation, it relied
upon Curosh because, as it explained, it found her opinion to
be more thorough and better reasoned and, therefore, more
persuasive than that of Stevens. The board’s conclusion that
claimant’s diabetes was a preexisting condition for the purposes of combined-condition analysis and that the diabetes,
rather than the work-related blister, was the major contributing cause of claimant’s foot condition and need for treatment was, thus, a logical conclusion based on the evidence
presented. Substantial evidence and reason support the
board’s view of the evidence and its ultimate conclusion that
the combined condition is not covered. Therefore, we reject
both of claimant’s assignments of error, as well as the cross-assignment of error asserted by SAIF. The board’s order is
affirmed.
Affirmed.
