This workers’ compensation case involves a claimant who fell while on her employer’s premises and sustained injuries. The Workers’ Compensation Board upheld employer’s denial of her claim, and claimant seeks review. The issue is whether the board erred in concluding that claimant’s fall was not compensable because it did not “aris[e] out of” a risk of her employment. ORS 656.005(7)(a) (a “compensable injury” is one “arising out of and in the course of employment”); Phil A. Livesley Co. v. Russ,
During her morning work break on February 1,2010, claimant fell while she was alone in employer’s lunchroom and sustained injuries to her head, left shoulder, right wrist, and right toe. Claimant initially returned to work but was experiencing such discomfort by the afternoon that she left to seek treatment at a hospital emergency room. She reported to hospital staff that she had tripped, although she has since not been able to recall “whether she slipped, stumbled, became dizzy or faint, or simply lost her balance.” She certainly “did not lose consciousness.” No employment-related hazards were identified that could have contributed to claimant’s fall.
Employer’s insurer denied claimant’s initial workers’ compensation claim. Claimant requested a hearing, and then had an Independent Medical Evaluation (IME) by neurologist Dr. Sean Green.
Green later signed a concurrence letter, in which he agreed with employer’s legal counsel that claimant’s “medical history and the diagnosis of [CSS] clearly raises the possibility that idiopathic factors caused [claimant] to fall at work.” Green agreed that several symptomatic manifestations of CSS could have caused claimant to fall, such as balance deficiencies secondary to inner-ear problems or peripheral neuropathy/lower-extremity numbness. He also agreed that, “given the totality of information available * * * it is at least equally possible [that claimant’s] fall was caused by problems associated with [CSS] than [with] risks associated with employment.”
Green similarly testified during an August 2010 deposition that he thought it was more likely that claimant fell because of one of several idiopathic factors — including symptoms of her CSS and her sleep apnea problem — than because of a work-related risk. Green also acknowledged during his deposition, however, that because the primary symptoms of CSS are pulmonary, a neurologist would not normally treat CSS even though it does “sometimes cause neurologic symptoms.” CSS, Green testified, “is uncommon enough that I don’t have direct experience seeing patients with Churg-Strauss in clinic.” Green further testified that many of claimant’s nonneurological health complaints could be related to her CSS, but when asked to assess whether certain examples that he had noted were, in fact, likely related to her CSS, Green testified that “coming from a neurologist,” any assessment that they were related would be a “guess.”
Claimant, for her part, testified that she experiences numbness in the bottom middle part of her left foot as a result of her CSS, but also said that numbness did not cause her to fall on February 1, 2010. According to claimant, she was not feeling dizzy, faint, or unwell, or having a flare-up of any CSS symptoms before her fall. She did state that her inner-ear problems are always present.
After considering that evidence, the ALJ set aside employer’s claim denial. In concluding that claimant’s injury arose from her
The board reversed the ALJ’s order. Unlike the ALJ, the board found “no inconsistencies” between Green’s IME report and his later statements that balance deficiencies secondary to inner-ear problems, peripheral neuropathy/ lower extremity numbness, and claimant’s sleep apnea were all more likely to have caused claimant’s fall than work-related factors. Particularly noting Green’s testimony that many of claimant’s CSS symptoms wax and wane and that the effects of sleep apnea are “not predictable,” the board reasoned that, even in light of the IME report and claimant’s testimony, those factors could not be excluded as potential causes for the fall. The board concluded that claimant’s fall was not truly “unexplained,” and, therefore, that the fall was not compensable. Claimant now seeks judicial review of the board’s order, challenging its determination that the claim is not compensable.
Under ORS 656.005(7)(a), “[a] ‘compensable injury’ is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability”:
“The Supreme Court has explained that, in order for a claim to be compensable, it must both occur in the course of the claimant’s covered employment and arise out of that employment. The requirement that the injury occur in the course of employment concerns the time, place, and circumstances of the injury. The requirement that it arise out of employment requires a causal link between the injury and the employment. Those requirements are two prongs of a single work-connection inquiry. In order for the injury to be compensable, there must be some support for each prong, but neither prong is dispositive. As we concluded in McTaggart v. Time Warner Cable,170 Or App 491 , 494,16 P3d 1154 (2000), rev den,331 Or 633 (2001), ‘[t]he basic question is whether the causal connection between the injury and the employment is sufficient to warrant compensation.’”
SAIF v. Uptegrove,
The parties in this case do not dispute that claimant’s injury occurred “in the course of” employment; accordingly, the only question we must address is whether claimant’s fall arose out of her employment. “[A] truly unexplained fall that occurs in the course of employment arises out of the employment as a matter of law.” McTaggart v. Time Warner Cable,
With that factual and legal background in mind, we turn to claimant’s single assignment of error on review. Claimant contends that the board erred both legally and factually by relying on Green’s concurrence letter and deposition testimony to deny compensability because, according to claimant, that evidence established that “[Green] was not an appropriate expert to address symptoms of [CSS] .”
Despite her charge of “legal error,” claimant’s contentions relate only to whether evidence in the record— including Green’s opinions — adequately supports the board’s conclusion that claimant’s fall was not truly “unexplained.” Accordingly, we review the board’s order for substantial evidence, meaning evidence that would permit a reasonable person to make the findings in question when considered in the context of the entire record. ORS 183.482(8)(c); Garcia v. Boise Cascade Corp.,
Given that standard of review, we reject claimant’s argument that it was error for the board to rely on Green’s concurrence and deposition testimony. Claimant is correct that, in deposition, Green testified that CSS is “uncommon enough that I don’t have direct experience seeing patients with [CSS]” and that the condition is “not ordinarily treated by a neurologist.” Green went on to explain, however, that CSS does sometimes cause neurologic symptoms like the peripheral pulmonary neuropathy and inner-ear problems with which claimant has been diagnosed, and which can cause problems with balance. Those symptoms, Green opined in both his IME report and in deposition, can wax and wane considerably over the course of weeks or months. Thus, although claimant showed no signs of a flare-up of CSS symptoms at her IME — which occurred over two months after the fall — Green opined that neither of claimant’s neurologically related CSS symptoms could be ruled out as possible factors iii claimant’s fall. The board relied on that opinion in reaching its conclusions, and we agree that it was reasonable to do so, given Green’s focus in testimony on neurologic symptoms of CSS and his explanation for why those symptoms may have been factors, even if they did not appear to be present during the IME.
We also reject claimant’s contention that, even if the board could have reasonably relied on Green’s opinions, substantial evidence does not support the board’s conclusions. Green’s causal assessments in his concurrence and deposition testimony suggested potential idiopathic causes for claimant’s fall, including balance problems secondary to both the inner-ear problems and neuropathy that are symptomatic of CSS and sleep apnea. Claimant testified that her inner-ear problems and numbness in her left foot are always present, and presented no evidence, medical or otherwise, that she fell as a result of work factors. The board considered Green’s as well as claimant’s testimony, and determined that, “although claimant could not identify the cause of her fall, the medical record raises the possibility that idiopathic risks” contributed to it. Substantial evidence supports that result. For that reason, we uphold the board’s determination that
Affirmed.
Notes
Claimant was also examined by Dr. Richard Sandell, an orthopedic surgeon. Sandell’s report does not include any discussion of the possible causes of claimant’s fall.
The term “idiopathic” in this context means “peculiar to the individual” and not “arising from an unknown cause.” Phil A. Livesley Co.,
Claimant particularly points to Green’s testimony that CSS is “uncommon enough that I don’t have direct experience seeing patients with [CSS],” and that the condition is “not ordinarily treated by a neurologist,” to contend that he was not qualified to assess whether CSS was a potential factor in claimant’s fall.