365 P.3d 636
Or. Ct. App.2015Background
- Claimant had a two-level anterior cervical discectomy and fusion (C5-6, C6-7) in April 2009 for cervical spondylotic myelopathy and returned to work by July 2009.
- On July 29, 2009, claimant sustained an on-the-job axial loading event causing neck pain; employer initially accepted a nondisabling cervical strain and later modified acceptance to a “combined condition” of nondisabling cervical strain combined with preexisting cervical spondylosis at C5-6 and C6-7, then denied benefits effective February 9, 2010.
- Employer relied principally on Dr. Berselli and Dr. Gripekoven (IME and testimony) to show preexisting spondylosis/fusion and that post-surgical changes/adjacent-level degeneration—not the acute strain—were the major contributing cause of disability/need for treatment; claimant’s experts (Drs. Camp and Gritzka) disagreed.
- The ALJ upheld the combined-condition denial but found the denial of authorization for diagnostic evaluation (referral to Dr. Camp) unreasonable; the board reversed the ALJ on the medical-services issue and upheld the combined-condition denial.
- On judicial review the court considered (1) whether employer proved a qualifying preexisting condition (and not merely increased susceptibility), and (2) whether the referral to an orthopedic surgeon for evaluation was compensable medical services under ORS 656.245(1)(a).
Issues
| Issue | Claimant's Argument | Employer's Argument | Held |
|---|---|---|---|
| Whether employer proved a qualifying preexisting condition that combined with the compensable injury | Employer identified “cervical spondylosis” which claimant says was resolved by fusion and thus cannot serve as a preexisting condition | Employer contends spondylosis and residuals of the fusion (scarring, adjacent-level breakdown) contributed to disability and need for treatment | Court rejected claimant’s narrow textual attack: employer may prove that treatment/residuals of the named condition contribute to disability, so the denial was not invalid for relying on fusion effects rather than the prelisted words |
| Whether the fusion/residuals had caused actual injury (vs. merely increased susceptibility) by the date of the work injury | Fusion only rendered claimant more susceptible to future breakdown; no evidence adjacent-level breakdown had occurred by July 29, 2009 | Employer relied on Gripekoven to show progressive/inevitable adjacent-level breakdown made those levels the major contributing cause by early 2010 | Court held substantial evidence did not support the board’s finding that actual adjacent-level breakdown existed as of the injury; testimony supported only increased susceptibility, not established injury — reversed and remanded |
| Whether Tattoo (binding employer to literal denial language) precludes employer from relying on fusion effects | Tattoo requires strict adherence to denial wording; claimant argues employer was bound by listing “spondylosis” | Employer argues Tattoo is narrow and does not prevent proving related residuals; the statutes focus on major contributing cause, not exact pleading | Court distinguished Tattoo, held employer did not contradict its denial; Tattoo’s strictness is limited and does not bar evidence that treatment/residuals of a named condition contribute to disability |
| Whether referral to an orthopedic surgeon (Camp) was compensable medical services | Claimant: Conklin’s referral to Camp was directed to the work injury and thus compensable under ORS 656.245(1)(a) | Employer: Referral related to a combined condition not caused in major part by the accepted injury, so not compensable | Because the court reversed the board’s finding that the combined condition denial was proper, it also reversed/remanded the medical-services denial; court also noted board applied an incorrect legal standard (Carlos-Macias) and remanded for further evaluation |
Key Cases Cited
- Corkum v. Bi-Mart Corp., 271 Or. App. 411 (court’s treatment of combined-condition major-contributing-cause analysis)
- Tattoo v. Barrett Business Serv., 118 Or. App. 348 (employer bound by express language of its denials — limited application)
- Columbia Forest Prods. v. Woolner, 177 Or. App. 639 (acceptance/denial scope evaluated in context; not limited to magic words)
- The Boeing Co. v. Cole, 194 Or. App. 120 (standard for reviewing evaluation of expert medical opinions)
- SAIF v. Carlos-Macias, 262 Or. App. 629 (medical-diagnostic procedure denials evaluated by relation to compensable injury, not the accepted conditions)