*1 8; February August Submitted on record and briefs resubmitted In Banc reversed 28, 1994, and remanded for petition reconsideration December for review denied (320 587) 7, 1995 March Compensation the Matter of the Donald W. Jocelyn, Claimant.

Donald JOCELYN, W.

Petitioner, WAMPLER WERTH FARMS and Liberty Northwest Insurance Corporation,

Respondents. (WCB A80290) 92-08595; CA *2 petitioner. McKeown filed the brief Martin J. respondents. Libmann filed the brief Alexander D. WARREN, J. dissenting. Muniz, J.,

WARREN, J.

Claimant seeks of an review order of the Workers’ Board, Compensation the Board contending erred that his determining aggravation claim is not compensable, because he has not requirement satisfied of ORS and shown that the initial compensable major contributing cause of his worsened condi- tion. We reverse.

Claimant experienced low back in 1987 while working employer. injury was diag- strain, nosed as a on a superimposed preexisting, non-work related degenerative disc condition. Before and after the 1987 injury, CT scans revealed that claimant had a bulging disc at L4-L5, and that that condition had remained unchanged. Employer accepted claim and it was closed in 1988. was reopened 1989 and 1990 for awards of permanent partial disability.

In March, 1992, defendant was at home when he sneezed while bending over to tie his shoe. He felt immediate sharp pain his back. Claimant work, tried to but could not. *3 A CT scan revealed disc increasing derangement and hernia- tion at L4-L5. Claimant’s doctors recommended a diskectomy and fusion. Claimant filed an aggravation claim under ORS 656.273 for the worsening of his accepted condition, which employer denied. The referee found that the medical evidence shows that claimant’s 1987 injury is not the major contribut- ing cause of his current increased disc Board, herniation. The the referee, held affirming that, because claimant’s current condition is caused by a combination of his compensable and his disc condition, he is preexisting required show, pursuant 656.005(7)(a)(B), to ORS that the compen- sable 1987 major cause of the worsened condition. The question review is whether the Board was correct to that of causation to claims for aggravation under ORS 656.273.

A claimant is entitled to additional for compensation the worsening condition, ORS accepted pursuant which provides, part:

“After the last arrangement award or of compensation, injured compensation, worker is entitled to additional services, including resulting for worsened conditions original injury. from the A worsened condition from by is established medical evidence However, if supported by objective findings. major con- tributing cause of the worsened condition is an occurring within the course and scope employment, worsening compensable.” is not that, The Board held because claimant had a back preexisting condition, in order a claim for under prove 656.273, claimant had to that com- prove accepted injury was the pensable major contributing 656.005(7)(a)(B). condition, worsened to ORS That pursuant subparagraph provides:

“If a compensable injury combines with a preexisting disability disease or to cause or or a need prolong condition treatment, the resultant condition is compensable only injuiy is and remains the compensable extent the cause of the or need for treatment.” did not prove compensable injury Because claimant condition, cause of his worsened was the Board held that the claim was not compensable.

Claimant that the Board erred in argues applying cause standard 656.273(1). He to this claim for under ORS statute has been asserts that long interpreted a claimant to show require of a was a material worsening condition, changed and that standard was not law. compensation the 1990 amendments to the workers’ by 656.005(7)(a)(B), of ORS Employer argues its amendments, by applies which was added compensation involving terms to claim for any claims additional including compensation under preexisting compensable *4 Tektronix, Inc. v. have touched on this issue We (1992), on recon 409, 844 P2d 258 Nazari, 117 Or App (1993), Gray 315, rev den 318 Or 27 590, 853 P2d App (1993). Nazari, SAIF, 121 Or App initial low of the claimant’s the compensability issue was We said: back claim. injury 656.005(7)(a)(B)]

“It is not clear how the statute [ORS is to be in the context applied of an initial claim compensation, when the combines injury with a condition to cause or prolong disability or a need for treatment.” 120 Or at 594. App (Emphasis supplied.)

We concluded that the legislature intended to “adopt major standard of with respect any claim for benefits or related to disability a preexisting, condition.” noncompensable at 594. App (Emphasis However, we supplied.) were then more precise recognizing that the issue before us was initial claims:

“We conclude that the applicable statute is in the context of an initial injury claim if injury combines with a preexisting, noncompensable prolong condition to cause or disability If, or a need for claim, treatment. in an initial there is disability or a need for treatment as a result alone, then the claim compensable is a mate- rial cause of the disability or need for treat- If, claim, ment. in an initial disability or need for treatment is due to the combination of the and a preexisting, noncompensable condition, then the injury is compensable only if major it is the contributing cause of the disability or need for treatment.” 120 Or App at 594. (Emphasis supplied.)

We went on to say that,

“[i]n order to obtain compensation further or a need for treatment that is the result of a combination of the and a preexisting, noncompensable claimant must show that

cause of the disability or need for treatment.” 120 Or at 594.

To the extent that the material could be read as quoted saying that ORS claims, applies because it would address an issue was reject reading, in the case, i.e., test for presented legal definition, By claims. claim under ORS 656.273 is claim for additional for the wors- compensation ening of an already accepted claim. Nazari regarding appli- broad overly

cation of ORS any claim for compensation went issue before us in that case and beyond specific touched on an issue that was not before us: the standard *5 issue the dissent says, As

proving aggravation. “difficult” 656.005(7)(a)(B) in Nazari was whether and how ORS however, claims, 132 Or 179; to initial at App applied feel to follow issue. We do not it was also the only compelled in Nazari that the major contributing cause the broad dictum claim for benefits or “any standard to applied condition.” noncompensable related to a preexisting, SAIF, did that ORS supra, v. say we Gray claims; however, we aggravation to applied asser- that bald and truncated be free to reconsider should in that case reads: subject on the tion. Our entire discourse contends, experi- that she has assuming, “Even as claimant claim, her condi- of her compensable enced has not satisfied the because she compensable, tion is 656.005(7)(a)(B). Tektronix, See Inc. v. requirements ORS Nazari, 121 Or at 219. [supra].” being what of claim was type about assumption Making Nazari, relying on dictum from Gray, and then asserted that should analysis and kind of consideration hardly the If our examination of the issue. from thorough us preclude on it in Gray and reliance dictum Nazari was our wrong, rather right, and set it to that ought recognize misplaced, that the we conclude both Because the error. perpetuate than on it our reliance in Nazari was and that dictum wrong order. the Board’s Gray misplaced, we reverse the 1990 amendment is whether The question 656.005(7), providing ORS of a combination resulting from the for conditions

standard condition, was a preexisting claim to a applies legal change intended 656.273(1). In interpreting ORS under legislature. intent of the discern the we are to statute, Industries, 317 Or 606, Labor and Bureau PGE v. 174.020; (1993). first to the by looking do that We 610, 859 i.e., “aggravation,” A claim statute. ofthe text and context for the compensation additional of that language The under arises case is: in this is at issue

statute compensation to additional is entitled worker injured “[A]n * * * original from the conditions for worsened injury.” from” in phrase “resulting stat-

ute has been a claimant long interpreted require prove original compensable injury or occupational disease was a material worsened condition. That interpretation part becomes of the statute as if it had been written into it at time enactment. Stephens Bohlman, 350 n (1992). The first most compelling indication that legislature did not intend ORS change causation test in ORS is that it did change critical requiring that wors- ened condition be one “resulting from the injury.” *6 Because “resulting from” has been always held to mean cause, legislature’s the to failure that change precludes a conclusion language that the legisla- ture intended a in its change meaning.

The dissent not does how a explain legislature’s to change can statutory language result in a of change failure the meaning Instead, of that language. it discerns a legislative intent to the of change meaning from” ORS “resulting in 656.273(1) 656.005(7)(a)(B). its 1990 enactment of ORS We disagree. ORS was added to the defini- tion of “compensable injury” contained in ORS 656.005- (7)(a); it was not added to the aggravation statute, ORS 656.273. The definition statute does not refer to the aggrava- or vice versa. Nor does ORS statute, tion 656.273(1), 656.273(1) Therefore, use the term “compensable injury.” there is no indication the text or the two context the statutes that ORS should to a claim apply for aggravation under ORS

The few that the 1990 did make changes legislature 656.273(1) to ORS are consistent the mean- with established 656.273(1) was amended in 1990 that, “if ing. to provide major contributing cause of the worsened condition not within the occurring scope course employ- is not If the ment, compensable.” legislature had a has intended that claimant with a to test major contributing meet a claim prove that 656.273(1), under ORS it makes no sense 656.273(1) to also would have amended ORS legislature that a claim for worsened condition

provide compen- if an cause. off-the-job injury sable cause, Because there can be one once a claimant that was the proved the worsened off-the-job be We are not at liberty would injury provision superfluous.1 it that makes interpret language way part redundant. also that on the

The dissent asserts our reliance from” legislature’s change “resulting failure to no “likely it is that the made misplaced, saying legislature 656.273, because it that changes additional to ORS believed 656.005(7) aggrava- changes encompassed made to 180. argument ignores tion claims.” 132 Or at That identical additions fact that the 1990 made some 656.005(7)(a) it and ORS when both ORS “by that a claimant must establish a claim provided If to ORS evidence by objective findings.” changes supported 656.005(7)(a) no rea- claims, there was son in ORS as well. change to make To the text and context are the extent conclusion definitive, legislative history also supports no intent change legal there was claims, off-the-job inju- except involving those Industries, Labor and supra, ries. See PGE Bureau of Keene, changes explaining proposed Or at 611. Jerald *7 on the Joint Interim Committee Special ORS 656.273 to said: Compensation, Workers’ * * * unchanged. is Material aggravations the standard

“On aggravation still the standard for an contributing cause is compen- a claim, worsening pre-existing is a natural of which you injure perma- condition that’s When a sable condition. your can gets you reopen worse once it nently problem, only that, problem, saying satisfactorily once address that injury The dissent fails major contributing cause of the is the a claimant shows that worsening, subsequent is its employer able to show that “the would be 38, App cause,” Reforestation, Or citing Fernandez v. M & M (1993). course, be one Of because there can at 180. test, cause, major meets the once the claimant logical both and correct under Fernandez is employer defeat the claim. cannot 656.273(1). reading. That is logical the dissent’s reading under of is our ORS meaning legislature the dissent did intend the indication that another 656.273(1). ascribes to ORS original if claim the remains a worsening. things that this statute does is change, though, worsening, situations where that [sic] being rather than progression natural of the com- is pensable instead caused some inci- injury, supervening off falling getting dent like or in a car roof accident.” Joint Special Interim Committee on Workers’ Compensation, May 3,1990, Tape Side (Emphasis supplied.) B.

At the House Special Session, Mannix Representative explained: regard aggravations.

“In right The standard now is whether or not there’s been some material contribution to is, worsened condition. The best I example up can come with you’ve got a low back strain and your back is hurtingyou, still go on a weekend at home trying you up the roof you and are your house, [to] you reroof own fall off. Those involving result[ant] medical services that low back strain are you still considered compensable probably got aggravation a worsening under the compensation] workers’ system. saying What we’re here worsening going — have to something [be] which where the industrial major is a contributing cause the worsening.” of House Session, Special May 7,1990, Tape Side A.

There nothing legislative history ORS 656.273 that mentions the major standard ORS 656.005(7)(a)(B) or that suggests the legislature intended ORS in the context.

Just as the of ORS legislative history 656.273 does not refer to ORS 656.005(7)(a)(B), legislative history ORS does not mention claims of both light legislative history 656.273(1) 656.005(7)(a)(B), legisla and ORS and of the ture’s failure to from” “resulting amend the and of to that specific changes subsection make, did we conclude that the did legislature not intend to affect the

claims. that a Accordingly, compen hold part by off-the-job sable not caused in compen under ORS injury, *8 contributing sable is a material the worsening. cause of 174

That if the had applies standard even claimant a condition that the preexisted compensable injury.2 of the consequence reasoning dissent’s absurd. The from language “resulting original the injury,” ORS two depend- would have different meanings, or has a ing whether the claimant condition the initial Under dissent’s preceded the compensable injury. reading statutes, the if the claimant does not have initial he or condition that preceded compensable injury, worsening she could prove compensability by showing original or disease of the disease cause have If, however, the claimant does worsening. preexisting the claimant would have to that the prove compen- sable or disease is the Absent in the stat- express language

worsening. directive, know of no specific legislative ute or some other we the same meanings for two different to authority attributing statutory language. intended change

Because never claim under ORS standard for proving 656.005(7)(a)(B) 656.273(1) 1990, we it ORS when enacted Board applying hold that the erred claim. cause standard to claimant’s 2 holding in Beck Corp., James This is consistent with our River result (1993), (1994), 484, 863 ORS in which held that rev den 318 Or 656.005(7)(a)(B) “condi apply medical services for does not to claims continued 656.245(1). injury” (Emphasis supplied.) The resulting under ORS tions from here, Similarly ORS cause. we hold standard remains material 656.005(7)(a)(B) compensation for “wors apply claim for additional does not to a 656.273(1). injury” under ORS ened conditions from Although (Emphasis contain supplied.) 656.245 and ORS 656.273 both explain why language, the dissent fails to same treatment, continuing apply does not justify giving way a different apply There is no but does claims. 656.273(1) gave in ORS meaning “resulting than we its use from” in ORS as used 656.245(1). (1993), 1, 860 Drews, P2d with SAIF v. This result is also consistent provision of ORS preexisting condition Supreme Court that the in which the held injury in the is a there new to a determination whether does arise when responsibility new claim can shifting A context of ORS However, worsening a claim under aof condition. work causes a accepted compensable is not a claim of an injury. a new reject We without discussion claimant’s second *9 of error. assignment

Reversed and remanded for reconsideration. MUNIZ, J., De dissenting.

Just over year one ago, the same statutes considering legislative the same history now by major examined Tektronix, ity, held, Nazari, Inc. v. 117 Or 409, 844 App (1992), 258 P2d on 590, recon 120 Or App 315, 853 P2d rev den Or (1993), 27 that by enacting 656.005(7)(a)(B), the legislature intended to adopt cause standard of with proof respect to claim for any benefits or disability related to a preexisting condition. More recently, in Gray SAIF, v. (1993), Nazari, relying we held that ORS applies to claim for an aggravation. a The majority’s new inclination aside, there is in either the or nothing statutes the legislative that warrants a history two those change holdings cases. 656.005(7)(a) defines “compensable It injury.”

provides, in part: ‘compensable

“A injury’ injury, accidental or acci- injury prosthetic dental appliances, arising out of and in the course of employment requiring medical services or death; disability injury or is accidental if the accident, means, result is an whether or not to accidental due if it is established by supported by objective medical evidence findings, subject following to the limitations:

“(A) No or disease is as a conse- compensable quence compensable injury compensable unless the of the consequential condition.

“(B) preexist- compensable injury If combines with ing or prolong disability disease condition to cause or treatment, need for the resultant condition is to the extent the and remains the major or need for treatment.” (A) (B) 1990, when were added subparagraphs

Until “major contributing cause” stan- requiring application described, dard of in the two circumstances the stan- by required prove dard which a claimant was that an of’ the was to be employment out understood “aris[es] Olson State “material cause” standard. Com., (1960), Ind. Acc. 352 P2d Court said: Supreme ‘arising its form out of used in simplest

“Reduced to as work or labor a causal being performed the act means the was * * * producing workman. factor in suffered cause, not be the sole but is sufficient the labor need material, being employment in the is a contribut- performed ing which leads to the unfortunate result.” 222 Or at omitted.) (Citations 414. “material con- having

That case is as established regarded *10 proof of of medical causation cause” as the standard tributing to claims. injury applicable original 656.273(1) provides, part: arrangement compensation, last of “After the award compensation, is entitled to additional injured an worker services, including resulting medical for worsened conditions A condition original injury. from the worsened by is medical evidence original established from However, con- supported by objective findings. if condition is an tributing cause the worsened of employment, the course and occurring scope within of supplied.) (Emphasis is worsening compensable.” by legislature. was added the 1990 The emphasized pre-1990 version of ORS Like the pre-1990 to standard no reference made version of that the worsened a claimant must show which has inter- it too been but original injury, “results from” of contributing cause” standard a “material require preted contributing fact, reveal that the “material the cases proof. was derived of claims proof aggravation cause” standard proof of the standard cases directly describing from the Compensation In Lemons v. original claims. applicable (1970), with- 128, citing 467 App Or Department, Com., supra, Ind. Acc. Olson v. State discussion out as the standard adopted claims. In Stand- standard of applicable proof aggravation SAIF, ley (1972), Or 495 P2d 283 we cited Lemons the same rule.

In Grable v. Weyerhaeuser Company, (1981), Court considered an Supreme aggra- vation claim which the claimant’s compensable injury an became worse after off-the-job injury. The court grappled with the of question of proof claims noted that Olson had generally. involved an claim in Lemons our Standley had opinions applied the Olson “material cause” of standard proof claims. The court considered Professor Larson’s to medical analytical approach of proof claims, 1 Larson Compensation Workmen’s Law, 3-348, (1978), § 13.00 which focused on whether the subsequent injury was “independent cause” of claim- intervening ant’s need for treatment or disability. that, The court said although approach appeared to different from the material standard, was only difference because the two superficial, differently were, phrased tests essentially, the converse of each other and lead to the same result. The court said:

“We if conclude that the claimant establishes that com- pensable a ‘material contributing cause’ his worsened necessarily he has thereby established that the worsened condition is not the result of an ‘indepen- dent, intervening’ nonindustrial cause. We hold that employer required pay worker’s compensation benefits for worsening of a worker’s condition where the on-the-job a compensable result both back and a off-the-job subsequent injury to the same part body *11 on-the-job injury worker established is a mate- rial contributing cause of the worsened condition.” 291 Or at 401. Grable

Thus, provided independent applica- rationale for tion of the material cause standard of contributing also Peterson generally. See the context of claims Lumber, Eugene v. F. Burrill 542, (1983). (A) and added legislature subparagraphs

(B) 656.005(7)(a), specific to ORS thus in those two requiring,

circumstances, that the compensable that the claimant show is cause condition is sought. which compensation provides:

“If a combines with a compensable preexisting prolong disease or condition to cause or need disability treatment, resultant is compensable condition major the extent the is and remains the compensable or need for treatment.” (B) would to be directly Subparagraph appear applicable it the facts of this as is conceded that claimant’s current case, need for the result of combination of his preexist- surgery and his ing compensable injury. disc disease changes made other as well. 656.273(1) add last amended ORS its two lines: arrangement “After the last award or of compensation, injured compensation, worker entitled additional services, including resulting medical worsened conditions original injury. A worsened condition from original injury by evidence from the is established However, objective findings. major con- supported is an tributing the worsened condition and occurring scope employment, within the course compensable.” (Emphasis supplied.) is not overrules the Court’s Supreme The emphasized language no longer compen- holding Grable. A worsened condition is off-the- cause is a subsequent sable if its is a on-the-job injury if the injury, compensable even job worsening. material 656.005(7)(a) to ORS Taken together, changes legislative intention apparent reflect an if its cause is primary not be compensated that a condition involved, it is condition If is a pre-existing work related. there work is the to show that the no the claimant enough for longer Tektronix, Inc. As we said cause. enacting Nazari, that, by shows supra, history legislative that, intended 656.005(7)(a)(B), anytime the legislature a combination result of a claimant’s current condition, rather than injury, that the must show claimant contributing cause. the preexisting *12 Gray supra, SAIF, Nazari, v. in recently, relying More on that same in the of applied rule context claim involving a worsened condition caused a by combination and a the compensable injury preexisting disease. That is circumstance here. Nazari, majority

The takes issue with my reliance that that is contending here, case not relevant our because holding Nazari was limited to the in of question whether ORS 656.005(7)(a)(B) in the context applicable of “initial quickly claim.” How majority forgets. is true that Nazari was not question presented by whether difficult 656.005(7)(a)(B) was applicable in the context of an aggrava- in tion claim or other circumstance been any when there had a previously accepted claim: We said in Nazari statute was obviously in those applicable circumstances.1 The in Nazari question whether, difficult in light was of statute’s of the existence apparent assumption compen- sable injury, could in applicable ever be the context an initial claim. In holding that the statute in the applied claim, context of an initial we referred to the which legislative history, we concluded showed that the objec- tive adopt “was cause standard of with for proof any claim benefits respect disability related a preexisting, noncompensable condi- tion.” at 590.

Because Nazari claim, did involve an aggravation is correct it is not majority direct authority our comments in Nazari regard- However, result case. this ing intent lent to our legislature’s certainly support Gray supra, SAIF, opinion in which holds expressly of an aggra- the context applicable Gray vation claim. The relevant facts of similar to those were work, here. The claimant strain experienced back at which the employer compensable. as The claimant’s doctor accepted later condition. diagnosed preexisting degenerative compen- “When the claimant has an that has been determined to be causation, contributing cause] [the sable under standard medical (B) easily subparagraph

words of are A condition from a understood: compensable only if combination of the and a compensable injury or need ” App at treatment of the ‘resultant condition.’ 592. be sought compensated preex- claimant for the surgery We held isting condition. that the claim was claim, or as an as an initial claim because claimant had not satisfied the cause” “major contributing 655.005(7)(a)(B). standard of set out ORS *13 is The is of the view that there no indication majority that the intended to a claimant’s burden of legislature change proof regard with to We aggravation agree, claims. would 656.005(7)(a)(B). it were not for the words of ORS Even express 656.273, without an to ORS those words reference indicate that cause standard is aptly intended to in the context an claim of aggravation remiss to condition. We are in our involving preexisting duty in ignor- the statute to its interpret according plain language words chosen ing very legislature. that, fact light

The surmises majority 656.273(1) in that the made some to ORS legislature changes proof to change had it the claimant’s burden sought claim, have made additional in an it would similar made to ORS to the statute to those changes no likely I think it more that the made 656.273, it believed that to ORS because changes additional 656.005(7) encompassed aggrava- made to ORS the changes tion claims. view, the to the

Contrary majority’s application to would not lead claims condition, no then the If there is absurdity. preexisting in an initial claim, as standard of If standard. claim, the material would be wors contributes to the is condition that there a preexisting claim, initial show, as in an then the claimant must ening, cause of the worsened major that the work is the case, off-the-job injury subsequent condition. either condition, then the employer to the worsened contributes its major subsequent that the able to show would be Reforestation, v. M & M Fernandez contributing cause. (1993). the way illogic There no different deal with They simply together. the statutes work may not be relevant may of a claim aspects potential case. particular I interpret statutes, As if a claimant has previ- established, ously claim, in the context of an because of effects a preexisting condi- employment, tion is itself there then would be no for the compensable, need reprove claimant the relationship employ- between the ment and preexisting condition a later aggravation condition, claim. preexisting once shown to compen- be sable, Here, remains compensable.2 claimant’s preexisting condition was in the noted at the time reports original claim, and he has received medical treat- perhaps ment and for the compensation effects that had condition; however, the preex- isting condition is not compensable, itself nor is it claimed to be. It is that preexisting condition that has worsened which claimant now seeks If claimant’s compensation. any injury bears to his current disc it relationship the extent it combines with the preexisting I condition. would hold that ORS is applica- ble and that claimant must show the initial compensable of the worsened condi- I tion. would hold that substantial evidence supports *14 Board’s determination that he has not met that burden.

Richardson, J.,C. Leeson, JJ., and Rossman join in this dissent. 2 Similarly, a claim for medical treatment condition is com

pensable remains See, e.g., Corp., 484, 488, Beck v. James River need for treatment. Or (1994). (1993), rev den