SAIF v. Williams

233

Argued and submitted September 5, 2019, affirmed May 13, 2020

In the Matter of the Compensation of

David M. Williams, Claimant.

SAIF CORPORATION

and Baker County School District #61,

Petitioners,

v.

David M. WILLIAMS,

Respondent.

Workers’ Compensation Board

1200237; A167310

466 P3d 1052

Petitioners, SAIF Corporation and Baker County School District #61, seek

review of an order of the Workers’ Compensation Board (board), which reversed

SAIF’s denial of claimant’s new or omitted medical condition claim. In SAIF v.

Williams, 281 Or App 542, 381 P3d 955 (2016) (Williams I), the Court of Appeals

vacated and remanded the board’s order, which had concluded that claimant

established the compensability of a “new medical or omitted medical condition”

claim under ORS 656.267. On remand, the board reconsidered claimant’s claim

and once again concluded that he had established the compensability of a new or

omitted medical condition. In this appeal, SAIF argues that the board erred by

(1) finding medical causation contrary to the law of the case and without substan-

tial evidence and substantial reason and (2) applying an incorrect legal standard

for determining the compensability of claimant’s new or omitted medical condi-

tion claim. Held: The board did not err. With regard to SAIF’s first assignment

of error, the Court of Appeals concluded that the board appropriately conformed

to its remand instructions in Williams I, that the board’s findings and conclu-

sions were supported by the record, and that the board adequately explained

its conclusions. With regard to SAIF’s second assignment of error, SAIF did not

preserve its argument because, by raising it first in its reply brief upon remand

from Williams I, it did not provide claimant with a meaningful opportunity to

respond to it.

Affirmed.

David L. Runner argued the cause and filed the briefs for

petitioners.

Julene M. Quinn argued the cause and filed the brief for

respondent.

234 SAIF v. Williams

Before DeHoog, Presiding Judge, and Egan, Chief Judge,

and Mooney, Judge.*

MOONEY, J.

Affirmed.

______________

* Egan, C. J., vice Hadlock, J. pro tempore.

Cite as 304 Or App 233 (2020) 235

MOONEY, J.

Petitioners, SAIF Corporation and Baker County

School District #61, appeal, for the second time in the life

of this case, an order of the Workers’ Compensation Board

(Board). In the first of petitioners’ appeals, we vacated and

remanded the board’s order, which had concluded that

claimant established the compensability of a “new medical

or omitted medical condition” under ORS 656.267 for a “tho-

racic spine Tarlov cyst.” SAIF v. Williams, 281 Or App 542,

543, 381 P3d 955 (2016) (Williams I). On remand, the board

reconsidered claimant’s claim in light of our decision and

once again concluded that claimant established the compen-

sability of a new or omitted medical condition under ORS

656.267 for his thoracic spine Tarlov cyst. On review, peti-

tioners argue that the board erred by (1) finding medical

causation contrary to the law of the case and without sub-

stantial evidence and substantial reason and (2) applying

an incorrect legal standard for determining the compensa-

bility of claimant’s new or omitted medical condition claim.

We reject petitioners’ arguments and conclude, for reasons

explained below, that the board did not err upon remand.

Accordingly, we affirm the board’s order.

In Williams I, we held that, because the board relied

on two significant factual inaccuracies in finding in favor

of claimant, its order was unsupported by substantial evi-

dence. Id. at 551. Upon remand, the board reconsidered the

facts presented and the parties’ arguments without those

inaccuracies, and it once again found in favor of claimant.

On appeal, the parties no longer dispute the relevant facts of

this case. We therefore describe the record as it is presented

to us.

I. FACTUAL BACKGROUND

As we stated in Williams I:

“Claimant was compensably injured on March 10, 2006,

when he fell through some rotting boards while walking on

a ramp. He struck the ground, later describing the pain as

‘like being kicked in the back by a horse.’ Three days later,

he was evaluated at a trauma center and received a diag-

nosis of a possible T5-6 facet joint fracture. On March 23,

2006, claimant was examined by Dr. Ha, who diagnosed a

236 SAIF v. Williams

thoracic strain. SAIF accepted a claim for thoracic strain.

In July 2006, Ha found the thoracic strain medically sta-

tionary without permanent impairment, although claim-

ant continued to experience severe thoracic symptoms. A

July 27, 2006, notice of closure did not award compensation

for permanent impairment.

“Over the next several years, claimant continued to

experience thoracic pain and spasms. He sought treatment

from at least 16 physicians over a four-and-a-half-year

period. Different MRI scans revealed, among other things,

mild posterior T7-8 and T8-9 disc protrusions and multiple

Tarlov cysts throughout the thoracic spine neural foram-

ina. The largest Tarlov cyst was at T5-6. Claimant also

underwent multiple neurological evaluations of his thoracic

spine. Several different physicians who treated claimant

during that period opined that the Tarlov cyst at the T5

level was likely an ‘incidental finding’ and not causing

symptoms.”

Id. at 543-44.

The board thoroughly described claimant’s medical

history and the opinions of the doctors who evaluated him

after his injury. The first of those opinions was Ha’s, who,

in March 2006—nearly two weeks after claimant’s injury—

found that claimant’s pain in his midthoracic region “radi-

ate[d] both proximally and distally from there,” and that

claimant was neurologically intact without deficiency.

Dr. Denekas, in November 2006, reported that

claimant experienced pain in his midthoracic region, which

did “not radiate around his chest,” but did, according to

claimant, “expand to approximately a 6" diameter area of

discomfort.” Denekas diagnosed claimant with his previ-

ously accepted condition of a “thoracic strain, medically sta-

tionary, with no obvious impairment,” and diffuse jerking,

which he did not believe was related to any type of neurolog-

ical disorder.

In April 2007, an MRI revealed mild T7-8 and T8-9

disc protrusions and a “small nerve root sheath cyst on the

left at T5-6.” The radiologist stated that the cyst was “likely

to represent an incidental finding despite the fact that it is at

the level of [claimant’s] reported pain and muscle spasms.”

A May 2008 MRI showed small disc protrusions at T8-9 and

Cite as 304 Or App 233 (2020) 237

T9-10 and small cysts at a number of locations along the

spinal column, including at T5-6.

In January 2009, Dr. Sabahi examined claimant’s

Tarlov cysts, which he found to range in size from 4-6 mm.

Sabahi opined that if the cysts were nearly three times that

size—over 1.5 cm—and located more centrally within the

spinal canal, they might cause symptoms. However, because

they were so small and not centrally located, he did not

believe that they caused claimant’s symptoms.

In June 2009, Dr. Gambee treated claimant.

Gambee reported that claimant experienced mid back pain

and some muscle spasms, but no associated radicular pain.

Gambee concluded that the cysts were not the cause of

claimant’s pain and that they were probably present before

his workplace injury. That indicated to Gambee that most of

claimant’s pain was musculoskeletal in nature and simply

related to his original workplace injury—not neurological

symptoms related to the cysts.

Only after claimant conducted his own internet

research into Tarlov cysts did he contact Dr. Feigenbaum,

who is an expert in the field of Tarlov cysts. Around that

time, in August 2010, claimant was again examined at

Oregon Health and Science University (OHSU). In that

examination at OHSU, he reported sharp pain between his

shoulder blades, which was reported as “intermittent radi-

ation around chest into xyphoid just below nipples.” That

was the first time on the record that he reported radiation

around his sides and to his chest.

In October 2010, Feigenbaum considered claimant’s

history, imaging studies, and the fact that he experienced

seven and one-half hours of relief from symptoms when

treated with trigger point injections. Claimant described

that relief as a “major breakthrough.” Shortly thereafter,

Feigenbaum diagnosed claimant with a “large left T5 Tarlov

cyst that appeared to be compressing the nerve root.” For

that, Feigenbaum recommended surgery.

In November 2010, Feigenbaum physically exam-

ined claimant for the first time and performed a left T5 lam-

inectomy and treatment of a left T5 Tarlov cyst. Claimant’s

238 SAIF v. Williams

symptoms resolved after the surgery. Feigenbaum opined

that claimant’s March 2006 work injury caused the T5

Tarlov cyst to become symptomatic and require treatment.

In December 2010, claimant filed a new/omitted medical

condition claim for the T5 Tarlov cyst condition, arguing

that his work injury was a material contributing cause of

his symptoms, and thus caused his need for treatment of the

T5 Tarlov cyst.

II. PROCEDURAL HISTORY

At SAIF’s request, in December 2011, Dr. Rosenbaum

examined claimant. After doing so, Rosenbaum concluded

that, because claimant had multiple cystic abnormalities

throughout his spine, his cysts were “[c]onsistent with a con-

genital pathologic abnormality and not a single traumatic

event.” Rosenbaum opined that the pain associated with

the cyst could not be related to claimant’s work injury, in

part, because he did not believe that Tarlov cysts can ever

become symptomatic. He also believed that claimant’s post-

surgery relief from symptoms indicated that he had experi-

enced a placebo effect from his surgery. Rosenbaum based

that belief on the fact that claimant had a recurrence of

similar symptoms a few months after his surgery, following

an incident in which he overextended his leg while stepping

in a hole. Although those symptoms abated, they indicated

to Rosenbaum that claimant’s surgery likely caused him to

experience temporary relief from a placebo effect, because

if the cyst had been the problem, surgery would have per-

manently relieved his symptoms and they would not recur

after he overextended his leg. SAIF was persuaded by

Rosenbaum’s opinion and, on December 15, 2011, SAIF

denied the T5 Tarlov cyst claim. Claimant then requested a

hearing.

The matter was heard by an administrative law

judge (ALJ). In presenting its case, SAIF primarily relied

on the opinions of Sabahi and Rosenbaum. Sabahi opined

that claimant’s T5 Tarlov cyst existed before his work injury

and that, because the cyst was relatively small, it should not

have caused symptoms. He then explained that, even if the

cyst could cause claimant’s symptoms, they were likely not

causally related to the work injury itself. He and Rosenbaum

Cite as 304 Or App 233 (2020) 239

agreed that claimant’s mechanism of injury (i.e., stepping

through a board and landing hard on his foot) was not con-

sistent with the development of a traumatic perineural

cyst with the symptoms that claimant described. They also

agreed that claimant’s post-surgery relief from symptoms

was likely the result of a placebo effect.

In support of his claim, claimant presented

Feigenbaum’s opinion. Feigenbaum ultimately concluded

that claimant’s work injury was the material contrib-

uting cause of his need for treatment of the Tarlov cyst.

Feigenbaum explained that he spoke with claimant and

reviewed his symptom history, imaging, and chart notes.

From those observations, he concluded that surgery would

help resolve claimant’s symptoms. He also recounted his

observations during surgery, which further led him to con-

clude that claimant’s workplace aggravation of his T5 Tarlov

cyst caused his symptoms. The ALJ set aside SAIF’s denial

of the claim, ordering SAIF to accept the claim. The ALJ

found that the claim was compensable based primarily on a

determination that Feigenbaum’s opinion was more persua-

sive than those of Rosenbaum and Sabahi.

On review, the board affirmed the ALJ’s order. The

board agreed with the ALJ’s conclusion that Feigenbaum’s

opinion was more persuasive than that of the other doc-

tors. It based that determination, in part, on the fact that

Feigenbaum operated on and thus physically observed

claimant’s cyst and that claimant’s symptoms abated after

surgery. The board, however, also based its decision on two

facts not in the record: (1) a statement that Feigenbaum per-

sonally examined claimant a month before his surgery, and

(2) a finding that Ha noted symptoms in the T5 dermatome

“radiating to the chest” shortly after claimant’s work injury.

Petitioners appealed the board’s decision and we

reversed and remanded. We explained that the board’s deci-

sion was not supported by substantial evidence in light of

the two misstatements of fact. Id. at 551. We stated that “it

is at least plausible that the board’s misstatement affected

the board’s decision to credit Feigenbaum’s opinion over

that of Sabahi’s.” Id. Because we could not determine to

what extent the board relied on those errors in formulating

240 SAIF v. Williams

its decision, we remanded to the board for reconsideration.

Id.

On remand, the board again affirmed the ALJ’s

order requiring SAIF to accept a T5 Tarlov cyst as a new or

omitted condition. In doing so, the board acknowledged that

its recitation of the record was partially inaccurate. It recon-

sidered Feigenbaum’s report alongside each of the other

doctors’ reports and again concluded that Feigenbaum’s

analysis was more persuasive. Accordingly, the board con-

cluded that claimant’s injury was the material contributing

cause of his symptoms and need for treatment of the Tarlov

cyst, and of the “condition” itself.

First, acknowledging its earlier misstatement of

Feigenbaum’s pre-surgery examinations, the board noted

that Feigenbaum’s opinion was still more convincing than

those of the other doctors, in part, because he personally

observed claimant’s condition during surgery. It found that

Feigenbaum’s opinion was “well-reasoned and persuasive,”

explaining:

“Feigenbaum, who is an expert in the treatment of Tarlov

cysts, was provided with all of the pertinent medical

records, considered claimant’s symptom presentation,

imaging studies, and his treatment at OHSU, and observed

claimant’s condition during surgery. He explained that the

causal relationship between the cyst and the symptoms

was evidenced by the compressed nerve root he found at

surgery, the procedure he performed to separate the nerve

from the cyst and to obliterate the cyst, and claimant’s

post-surgery relief of symptoms. * * * He explained how

claimant’s thoracic radicular symptoms following the work

injury correlated with a T5 cyst and that it was common

for Tarlov cysts to become symptomatic after a traumatic

event, ‘probably due to further or worsening nerve com-

pression or inflammation.’ ”

The board also explained why Feigenbaum persua-

sively rebutted the opinions of Rosenbaum and Sabahi:

“In response to Dr. Sabahi’s observation that the cyst

was too small to be causing symptoms, Dr. Feigenbaum

responded that because the cyst existed in a small space,

it was ‘more about where the cyst is located and what it’s

Cite as 304 Or App 233 (2020) 241

pressing on[.]’ * * * Regarding Dr. Rosenbaum’s and Sabahi’s

opinion that claimant’s recurrence of symptoms after a

post-surgery off-work fall supported a conclusion that the

surgery likely caused a placebo effect, Dr. Feigenbaum

explained that the post-surgical fall likely irritated the

sacral nerves causing a recurrence of symptoms, but this

did not mean that the surgery was not successful. Rather,

Dr. Feigenbaum reasoned that it meant that nerves were

re-irritated. He reasoned that claimant had improved

since, indicating that it was a temporary irritation and the

benefits of the surgery were retained and real, not placebo.

“Finally, we do not consider the opinions of Drs.

Rosenbaum and Sabahi persuasive as they focused on

whether the injury caused the Tarlov cyst, and did not ade-

quately consider whether it caused a disability or need for

treatment. * * * Yet, claimant need not prove that the injury

caused the cyst; rather, he must establish that the injury

was a material cause of his disability/need for treatment

for the claimed condition. Under such circumstances, we

consider Drs. Sabahi’s and Rosenbaum’s opinions less per-

suasive in resolving the compensability issue.”

(Footnote omitted.).

The board concluded that claimant established

a “new medical or omitted medical condition” under ORS

656.267 for a “thoracic spine Tarlov cyst,” affirming the

ALJ’s order. One member of the board dissented, concluding

that claimant did not prove that his injury caused his need

for treatment of the cyst, in part, because Feigenbaum’s

opinion did not sufficiently address claimant’s apparent lack

of symptoms between 2006 and 2010.

III. ANALYSIS

Petitioners again appeal the board’s order, raising

two assignments of error. First, petitioners argue that the

board erred by finding medical causation contrary to the law

of the case, and without substantial evidence or substantial

reason. That assignment of error has three components, and

we address each in turn. Second, petitioners argue that the

board erred by applying the wrong legal standard for deter-

mining the compensability of a new or omitted medical con-

dition claim.

242 SAIF v. Williams

Before turning to those assignments of error, we

describe the relevant legal framework that we use to review

the board’s decision. A workplace injury is compensable in

a workers’ compensation action so long as it is “an acciden-

tal injury, * * * arising out of and in the course of employ-

ment requiring medical services or resulting in disability or

death.” ORS 656.005(7)(a). ORS 656.267 establishes the pro-

cedure for a claimant to initiate a claim for a new or omitted

medical condition. ORS 656.267 does not, however, explic-

itly provide a standard to prove that a new/omitted medical

condition claim arises out of the worker’s employment. We

therefore apply the “material contributing cause” standard

to determine whether claimant’s work injury was compensa-

ble.1 See ORS 656.003 (“Except where the context otherwise

requires, the definitions given in this chapter otherwise gov-

ern its construction.”); Schleiss v. SAIF, 354 Or 637, 643-44,

317 P3d 244 (2013) (explaining that an injury, as defined by

ORS 656.005(7)(a), “arises out of” employment “if the labor

being performed in the employment is a material, contrib-

uting cause which leads to the unfortunate result” (inter-

nal quotation marks omitted)); Olson v. Safeway Stores, Inc.,

132 Or App 424, 429-30, 888 P2d 1084 (1995) (applying the

“material contributing cause” test for an aggravation claim

where the statute governing aggravation claims did not sup-

ply one).

Thus, to prove the existence and compensability of

a new or omitted medical condition, the claimant must prove

that his or her injury was the “material contributing cause”

of the disability or need for treatment of the new or omit-

ted condition. Schleiss, 354 Or at 643-44; Olson v. State Ind.

Acc. Com., 222 Or 407, 414, 352 P2d 1096 (1960). “The claim-

ant bears the burden of proving the existence and compen-

sability of a new or omitted condition by a preponderance

of the medical evidence.” Williams I, 281 Or App at 548; see

also ORS 656.226(1) (requiring the claimant to prove the

compensability of an injury or occupational disease); De

Los-Santos v. Si Pac Enterprises, Inc., 278 Or App 254, 257,

373 P3d 1274, rev den, 360 Or 422 (2016) (“[T]he legislature

1

As noted and further explained below, we do not address whether the

standard of proof of causation has changed, as petitioners argue in their second

assignment of error.

Cite as 304 Or App 233 (2020) 243

intended that a claimant would bear the burden of prov-

ing the existence of a claimed new or omitted condition in

the context of a claim under ORS 656.267[.]”). The claimant

must do so via expert medical opinion. Barnett v. SAIF, 122

Or App 279, 282, 857 P2d 228 (1993).

We review the board’s legal conclusions for legal

error and its determinations on factual issues for substan-

tial evidence and substantial reason. Luton v. Willamette

Valley Rehabilitation Center, 272 Or App 487, 490, 356 P3d

150 (2015). “Substantial evidence exists when the record,

viewed as a whole, permits a reasonable person to find as

the Board did, in the light of supporting and contrary evi-

dence.” State Farm Ins. Co. v. Lyda, 150 Or App 554, 559,

946 P2d 685 (1997), rev den, 327 Or 82 (1998). “In deter-

mining whether the board’s order is supported by substan-

tial reason, we consider whether that order articulates the

reasoning that leads from the facts found to the conclusions

drawn.” Walker v. Providence Health System Oregon, 254 Or

App 676, 686, 298 P3d 38, rev den, 353 Or 714 (2013) (inter-

nal quotation marks omitted).

A. Second Assignment of Error

We first address and reject petitioners’ second

assignment of error. Petitioners argue that the board erred

by evaluating petitioner’s claim for a new/omitted medical

condition under a standard requiring petitioner to prove

that his work injury was the “material contributing cause

of the need for treatment or his disability.” That burden of

proof of causation was incorrect, petitioners argue, because

the legislature has altered the statutory scheme regulating

claims for new conditions, and because Brown v. SAIF, 361

Or 241, 391 P3d 773 (2017), required “claimant arguably [to]

show that the work injury not only made a condition ‘symp-

tomatic,’ but contributed to the condition itself.” Claimant

responds that this assignment of error was unpreserved

because petitioners first raised it in their reply brief upon

remand, which deprived him of a meaningful opportunity to

respond to petitioners’ argument.

We reject petitioners’ argument because we agree

with claimant that this assignment of error is unpreserved.

The “touchstone” of the preservation doctrine “is procedural

244 SAIF v. Williams

fairness to the parties and to the trial court.” Peeples v.

Lampert, 345 Or 209, 220, 191 P3d 637 (2008). “[A]n assigned

error is preserved for our review if the issue underlying the

assignment of error was raised in the lower tribunal in a

manner that gave all opposing parties a fair opportunity

to respond and make their own cases with respect to the

issue, and that gave the lower tribunal a fair opportunity

to resolve the issue and avert the error claimed before us.”

Snyder v. SAIF, 287 Or App 361, 365, 402 P3d 743 (2017)

(citing Peeples, 345 Or at 219-21).

At the initial hearing, petitioners acknowledged

that the relevant standard required claimant to demon-

strate that his work injury caused his symptoms and his

need for treatment of those symptoms. The board applied

that standard of proof both times that it considered the

case. Because raising a different theory in their reply brief

on remand after our decision in Williams I deprived claim-

ant of a meaningful opportunity to respond to petitioners’

argument before the board, petitioners did not preserve this

assignment of error. We, therefore, reject petitioners’ second

assignment of error without further discussion.

B. First Assignment of Error

We turn now to petitioners’ first assignment of

error, which consists of three separate arguments: (1) that

the board’s order violated the law of the case, (2) that the

order lacked substantial evidence, and (3) that the order

lacked substantial reason. We address them each, in turn.

1. Law of the case

Petitioners start with the proposition that, in

Williams I, we held that Ha’s chart notes precluded a finding

that claimant experienced symptoms in the T5 dermatome

shortly after his injury. Petitioners then assert that the

board erred when it found that claimant “established that

such symptoms were always present,” despite our ruling in

Williams I.

The law of the case doctrine mandates that “an

appellate decision is binding and conclusive for purposes

of future proceedings in the same case.” Estrada v. Federal

Express Corp., 298 Or App 111, 118, 445 P3d 1276, rev den,

Cite as 304 Or App 233 (2020) 245

365 Or 769 (2019). The only binding portions of an appellate

court’s decision, however, are those that are “necessary to

the disposition of the appeal.” Hayes Oyster Co. v. Dulcich,

199 Or App 43, 53, 110 P3d 615, rev den, 339 Or 544 (2005)

(internal quotation marks omitted).

We reject petitioners’ argument that the board’s

opinion is contrary to the law of the case. Petitioners

interpret our holding in Williams I too broadly; if we had

held that claimant’s lack of specific symptoms reported in

Ha’s notes, on its own, precluded the board’s reliance on

Feigenbaum’s opinion regarding causation, we would not

have remanded the case to the board. In Williams I, we held

only that, because the board mistakenly relied on a fact not

present in Ha’s report, remand was required for the board

to determine whether it still found Feigenbaum’s opinion

more persuasive than those of the other doctors—in light

of that correction of the record. Williams I, 281 Or App at

551. We explicitly left open the possibility that the board

could conclude that Feigenbaum’s opinion was persua-

sive and that it could provide the basis for finding medical

causation; we simply required that it do so without relying

on factual inaccuracies. See id. (“[I]t is at least plausible that

the board’s misstatement affected the board’s decision to

credit Feigenbaum’s opinion over Sabahi’s. Because it is not

possible for us to determine to what extent the errors * * *

affected the board’s decision, we remand to the board for

reconsideration.”). On remand, the board based its conclu-

sion that claimant experienced symptoms on Feigenbaum’s

opinion—not Ha’s. It also found causation based on an accu-

rate description of the record, which we recognized to be a

possible outcome on remand. Its analysis, therefore, did not

violate the law of the case.

2. Substantial evidence

We also reject petitioners’ argument that the board

erred by finding medical causation unsupported by substan-

tial evidence. Petitioners point to what they believe to be the

“elephant in the room”—essentially, that the board disre-

garded a significant amount of evidence supplied by numer-

ous doctors who concluded that claimant’s workplace injury

was not the material contributing cause of claimant’s need

246 SAIF v. Williams

for treatment of a T5 Tarlov cyst. They present several doc-

tors’ opinions that the board did not address, as well as those

of Sabahi and Rosenbaum, to argue that there is insufficient

evidence indicating that claimant actually experienced the

alleged symptoms between his injury and when he was eval-

uated in 2010. Accordingly, they say, Feigenbaum’s opinion

alone cannot support an award for a new/omitted medical

condition claim.

“[W]hether a condition is encompassed within a new

or omitted condition claim is * * * a question of fact that we

review for substantial evidence.” Labor Ready v. Morgensen,

275 Or App 491, 497, 365 P3d 623 (2015). “Substantial evi-

dence supports a finding when the record, viewed as a whole,

permits a reasonable person to make that finding.” Garcia v.

Boise Cascade Corp., 309 Or 292, 294, 787 P2d 884 (1990).

Thus, we will not disturb the board’s conclusion that a new/

omitted medical condition claim is compensable so long as

its interpretation of competing medical evidence is reason-

able. Labor Ready, 275 Or App at 498. If its interpretation

is reasonable, will not reverse the board’s order, even if

competing medical evidence could also support the opposite

conclusion. See Akins v. SAIF, 286 Or App 70, 76, 398 P3d

463, rev den, 362 Or 94 (2017) (concluding that the board’s

decision was supported by substantial evidence, despite the

possibility that it could have also reasonably adopted the

opposite conclusion).

Notwithstanding the volume of medical opinions

supporting petitioners’ theory of the case, we find that

the board’s order was supported by substantial evidence.

Feigenbaum’s opinion and the medical evidence that the

board found provided a reasonable basis to support the

board’s conclusion. The record reflects that the board weighed

the evidence by evaluating the content of the opinions and

testimony and not by simply counting the number of expert

witnesses presented by the parties. To be sure, the board

could have adopted its dissenting member’s conclusion and

reached a different result. However, that does not render its

opinion unsupported by substantial evidence. See id.

Feigenbaum relied upon the chart notes of other pro-

viders in reaching his conclusion that claimant experienced

Cite as 304 Or App 233 (2020) 247

symptoms consistent with a T5 Tarlov cyst dating back

to the approximate time of his injury. That included Ha’s

notes from March 2006, indicating that claimant presented

“pain in his midthoracic region,” which “radiate[d] both

proximally and distally from there,”2 as well as a note from

2010 indicating that claimant experienced pain “wrapping

around his chest and ending up at the xyphoid process.”3

In reaching his opinion, Feigenbaum reviewed and consid-

ered all the doctors’ notes created between 2006 and 2010,

his consultation with claimant and evaluation of claimant’s

reported symptoms, his pre-surgery examination of claim-

ant, his surgery and personal observation of claimant’s T5

Tarlov cyst, his medical expertise, and claimant’s post-

surgery relief from symptoms. Feigenbaum was permitted

to learn about claimant’s symptom presentation (pain in his

back wrapping around to his chest) from claimant himself,

and he was permitted to use the reports available and his

expertise to formulate his conclusion about what caused

claimant’s need for treatment. See SAIF v. Lewis, 335 Or

92, 101, 58 P3d 814 (2002) (explaining that a doctor may

rely on his or her interview of a patient to produce adequate

objective medical findings). Put another way, he was not

required to independently verify everything that claimant

told him about his symptoms. Because the board’s reliance

on Feigenbaum’s objective medical findings was reasonable,

substantial evidence supported its conclusion.

3. Substantial reason

Relatedly, petitioners argue that the board’s order

was not supported by substantial reason. They argue that,

even if the board could rely solely on Feigenbaum’s report, the

board was required to provide a more thorough explanation

2

The board in Williams I stated that Ha’s notes indicated that “claimant

had experienced symptoms at T5 and radiating to the anterior chest as early as

two weeks after the work injury.” Williams I, 281 Or App at 549 (emphasis in

the original). We reversed because Ha’s notes did not specifically indicate that

claimant experienced those symptoms, which would have been consistent with

an aggravated T5 Tarlov cyst. Here, however, the board relied solely on the infor-

mation actually present in Ha’s record—that claimant experienced pain in his

midthoracic region, which radiated both proximally and distally. Feigenbaum

relied on that symptom presentation when analyzing claimant’s injury.

3

The “xyphoid process” is the area at the bottom of the sternum in the chest.

Stedman’s Medical Dictionary 1836 (28th ed 2006).

248 SAIF v. Williams

for why it chose Feigenbaum’s analysis over those of the

other experts. We reject that assignment of error because

the board adequately explained its conclusion.

“In determining whether the board’s order is sup-

ported by substantial reason, we consider whether that order

articulates the reasoning that leads from the facts found to

the conclusions drawn.” Walker, 254 Or App at 686 (inter-

nal quotation marks omitted). We will generally reverse the

board’s order for a lack of substantial reason when it fails to

resolve material factual discrepancies present on the record,

or when it fails to explain how its facts led to its conclu-

sion. See Federal Express Corp. v. Estrada, 275 Or App 400,

407, 364 P3d 25 (2015) (finding that the board’s order lacked

substantial reason when it included inconsistent factual

findings and failed to rationally connect those findings to

its conclusion); Hamilton v. Pacific Skyline, Inc., 266 Or App

676, 682, 338 P3d 791 (2014) (holding that the order was

not based on substantial reason because the board failed to

connect its factual findings to its conclusion); Christman v.

SAIF, 181 Or App 191, 197-98, 45 P3d 946 (2002) (holding

that the board’s order was not based on substantial reason

when it did not explain inconsistent factual findings).

Before announcing its conclusions of law, the board

thoroughly described claimant’s history of symptom presen-

tation and treatment. It considered our opinion in Williams I

and described its findings (without misstating the record).

The board then articulated each of the relevant doctors’ opin-

ions about the cause of claimant’s symptoms and his need

for treatment. It described Sabahi’s opinion: that claimant’s

injury likely did not cause claimant’s symptoms because

his Tarlov cyst was relatively small, and that his injury

“was not conducive to ‘blowing out’ nerve root sheaths” near

claimant’s cyst. Finally, it described Feigenbaum’s opinion:

that pre- mid-, and post-surgery observations of claimant’s

conditions and claimant’s symptoms were consistent with

a Tarlov cyst becoming “symptomatic after trauma due to

worsened nerve compression or inflammation,” likely caused

by his work injury.

The board determined that the compensability of

claimant’s Tarlov cyst ultimately came down to a credibility

Cite as 304 Or App 233 (2020) 249

contest between Feigenbaum and Sabahi. Proceeding from

the facts articulated, the board found Feigenbaum’s opin-

ion more persuasive because: (1) Feigenbaum considered

claimant’s history of symptom presentation; (2) Feigenbaum

observed that claimant’s imaging studies suggested an

inflamed nerve root sheath aggravated by a T5 Tarlov

cyst; (3) Feigenbaum relied on his expertise in Tarlov cysts

to evaluate claimant—an expertise that none of the other

doctors shared; (4) Feigenbaum was the only doctor to actu-

ally operate on and physically observe claimant’s cyst; and

(5) claimant’s symptoms resolved after his surgery.

The board also explained why it did not find other

doctors’ opinions to be more persuasive. It found that Sabahi’s

and Rosenbaum’s opinions failed to squarely address the

specific issue of causation because they concluded that

claimant’s workplace injury did not cause the Tarlov cyst

itself. But, the cause of the Tarlov cyst itself was not relevant

to compensability. Claimant was required to establish that

his injury was the material contributing cause for his need

for his disability or need for treatment of the Tarlov cyst. In

any event, the board found that Feigenbaum’s opinion also

“persuasively support[ed] a conclusion that the claimed T5

Tarlov cyst was a ‘condition’ (i.e., the physical status of a

body party), rather than just a symptom.” The board prop-

erly focused on the elements required to determine compen-

sability, and it explained that the opinions of Sabahi and

Rosenbaum did not adequately address those elements.

Finally, the board considered Feigenbaum’s response

to the other doctors’ opinions. Addressing Sabahi’s opin-

ion that the cyst was too small to cause the symptoms

claimant described, Feigenbaum explained that the symp-

tom presentation “was more about where the cyst [was]

located and what it[ ] [was] pressing on” than it was about

size. Addressing the placebo effect opinion based upon the

recurrence of symptoms weeks after surgery, Feigenbaum

explained that claimant’s post-surgery fall likely irritated

“the sacral nerves, causing a recurrence of symptoms.” He

added that the eventual disappearance of symptoms sup-

ported the conclusion that his surgery had likely been suc-

cessful. The board’s adoption of those findings adequately

250 SAIF v. Williams

addressed the Sabahi and Rosenbaum opinions in the con-

text of its findings.

The board thoroughly considered Feigenbaum’s

analysis and explained why it adopted his conclusion that

claimant’s work injury was the material contributing cause

of his need for treatment. Those conclusions logically fol-

lowed the board’s findings of fact, and they resolved the

doctors’ conflicting opinions and reports.4 The opinion was

supported by substantial reason. Accordingly, the board did

not err upon remand.

Affirmed.

4

Petitioners also present reports of doctors that the board did not address in

its opinion, arguing that the board should have explicitly addressed them. After

reviewing those reports, we conclude that the board did not err by declining to

do so. The omitted reports largely focus on the fact that claimant did not appear

to present neurological symptoms consistent with an aggravated T5 Tarlov cyst

until 2010. The board already addressed that issue, explaining that it found

Feigenbaum’s opinion credible and persuasive when he opined that (1) claimant

did experience symptoms consistent with an aggravated nerve root associated

with a T5 Tarlov cyst, and (2) claimant’s 2006 work injury caused that aggrava-

tion. The board was not required to dispute each doctor’s contrary observations

when those observations were redundant.