Johnston v. Gordon Trucking - Heartland Express

531

Argued and submitted October 5, 2018, affirmed July 15, 2020

In the Matter of the Compensation of

Marc R. Johnston, Claimant.

Marc R. JOHNSTON,

Petitioner,

v.

GORDON TRUCKING - HEARTLAND EXPRESS,

Respondent.

Workers’ Compensation Board

1504241, 1501330; A164266

471 P3d 129

On judicial review of an order of the Workers’ Compensation Board, claim-

ant challenges the board’s denial of his occupational disease claim for lumbar

arthritis and degenerative disc disease. The board determined that claimant

had not met his burden of proving that employment conditions were the major

contributing cause of those conditions. Claimant argues that the board erred

in failing to recognize that, once claimant came forward with evidence to sup-

port his contention that work activities were the major contributing cause of his

lumbar arthritis and degenerative disc disease, the burden shifted to employer

to establish that other causative factors outweighed the contribution from work

activities. Claimant also contends that the board erred in viewing aging as a

nonwork-related factor because, “[a]s one ages, one has more work exposure.”

Finally, claimant argues that the board erred in weighing “genetics” as a factor

in the analysis of major contributing cause. Held: The board did not err when

it placed the burden on claimant to prove the existence of a compensable occu-

pational disease. Nor did the board err when it considered contributions from

aging, as influenced by genetics, to be nonwork-related factors that contributed to

claimant’s lumbar arthritis and degenerative disc disease. Accordingly, claimant

has not established that the board erred when it found itself unpersuaded that

employment conditions were the major contributing cause of the claimed occupa-

tional disease.

Affirmed.

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

petitioner.

Trisha D. Hole argued the cause and filed the brief for

respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and

Hadlock, Judge pro tempore.

532 Johnston v. Gordon Trucking - Heartland Express

HADLOCK, J. pro tempore

Affirmed.

Cite as 305 Or App 531 (2020) 533

HADLOCK, J. pro tempore

On judicial review of an order of the Workers’

Compensation Board, claimant challenges the board’s

denial of his occupational disease claim for lumbar arthritis

and degenerative disc disease. The board determined that

claimant had not met his burden of proving that employ-

ment conditions were the major contributing cause of those

conditions. The board’s conclusion rests largely on two find-

ings. First, the board found that “claimant’s aging process,

contributed to by his genetics, was an active, ongoing con-

tributor to the development” of the arthritis and degener-

ative disc disease. Second, the board found that medical

evidence suggesting that claimant’s work activities also con-

tributed was not “sufficiently persuasive” to establish the

existence of a compensable occupational disease. On judicial

review, claimant argues that the board erred in failing to

recognize that, once claimant came forward with evidence

to support his contention that work activities were the major

contributing cause of his lumbar arthritis and degenerative

disc disease, the burden shifted to employer to establish

that other causative factors outweighed the contribution

from work activities. Claimant also contends that the board

erred in viewing aging as a nonwork-related factor because,

“[a]s one ages, one has more work exposure.” Finally, claim-

ant argues that the board erred in weighing “genetics” as a

factor in the analysis of major contributing cause. We reject

each of those arguments and, therefore, affirm.

We describe the historical facts in keeping with the

board’s factual findings, which claimant does not challenge

and which, therefore, are the facts for purposes of judicial

review. King v. SAIF, 300 Or App 267, 268, 452 P3d 1039

(2019). Where needed to provide more complete context,

we also describe additional uncontroverted evidence in

the record that is consistent with the board’s findings and

conclusions.

Claimant worked as a truck driver for about 35

years. In July 2014, he suffered a compensable lower back

injury, later described as a lumbar strain. An MRI per-

formed a few days after the injury revealed previously

existing degenerative changes to claimant’s spine. Two

534 Johnston v. Gordon Trucking - Heartland Express

physicians, Swan and Rosenbaum, opined that the lumbar

strain and the preexisting degenerative changes formed

a combined condition; they also reported that claimant’s

work injury was the major contributing cause of his disabil-

ity and need for treatment of that combined condition. In

August 2014, employer accepted a claim for “lumbar strain.”

Claimant was off work and received treatment for the next

several months. In November 2014, Swan declared claimant

to be medically stationary without permanent impairment,

and he released claimant back to work.

Claimant returned to work, although he was

assigned to do a different type of driving than he had done

before. In January 2015, claimant visited Swan, reporting

increased lower back pain that he associated with work.

Swan concluded, based on claimant’s history and the type

of pain he experienced, that claimant’s back pain probably

was due to his preexisting degenerative changes. Claimant

saw another physician, Ferguson, in March 2015; Ferguson

concluded that claimant was unable to continue working

because of his “severely aggravated” back. In July 2015,

Ferguson opined that the strain associated with claimant’s

July 2014 injury “had fully resolved” and that “claimant’s

continued complaints were likely related to degenerative

disc disease and * * * disc bulges, which developed gradually

over time due to an underlying degenerative process.”

Claimant then filed the claim pertinent to this judi-

cial review, viz., an occupational disease claim for lumbar

arthritis and degenerative disc disease. Employer denied the

claim, contending that claimant’s work activities were not

the major contributing cause of those conditions. A hearing

was held on employer’s denial, and we discuss the evidence

submitted at that hearing in more detail below. Here, it is

sufficient to highlight two aspects of the evidentiary record.

In a deposition, Ferguson identified work activity, genetics,

and aging as the causal factors of claimant’s lumbar arthri-

tis and degenerative disc disease, and he concluded “that a

combination of genetics and aging outweighed work activity

and was the major contributing cause of” those conditions.

Rosenbaum also reported that claimant’s work was not the

major contributing cause of his lumbar arthritis and degen-

erative disc disease.

Cite as 305 Or App 531 (2020) 535

Citing those opinions and additional medical evi-

dence, the board found (1) that “claimant’s aging process,

contributed to by his genetics, was an active, ongoing con-

tributor to the development of his lumbar arthritis and

degenerative disc disease” and (2) that Ferguson’s discus-

sion of how work activities contributed to those conditions

was not “sufficiently persuasive,” noting that Ferguson had

stated that it was “impossible to say” whether claimant’s

work accelerated those conditions and that Ferguson did not

have any data to support a view that prolonged sitting and

“bouncing/vibration” associated with truck driving contrib-

uted to degenerative disc disease and arthritis. In the end,

the board found itself “not persuaded that claimant satisfied

his burden of proving a compensable occupational disease.”

It therefore upheld employer’s denial of claimant’s occupa-

tional disease claim.1

On judicial review, claimant first argues that the

board erred when it assigned him the only burden of proof in

association with his occupational disease claim. Claimant

acknowledges that workers who assert occupational disease

claims have the burden to prove that the occupational dis-

ease is compensable. See ORS 656.266(1) (“The burden of

proving that an * * * occupational disease is compensable

and of proving the nature and extent of any disability result-

ing therefrom is upon the worker.”). Claimant also acknowl-

edges that an occupational disease is compensable only if

1

Claimant also filed a new/omitted medical condition claim, which employer

denied, and that claimant litigated under a “combined condition” theory. Doctors

Rosenbaum and Ferguson agreed that claimant’s July 2014 work injury had com-

bined with his other, preexisting conditions and that the injury was the major

contributing cause of claimant’s need for treatment until December 2014. Based

on those medical opinions and other evidence in the record, the board applied a

“combined condition” analysis and set aside employer’s denial of the new/omitted

condition claim. That aspect of the board’s order is not before us on judicial review.

We also observe that the board issued two orders in this case: an initial order

in January 2017 and an order on reconsideration in February 2017. Claimant

sought judicial review of both the initial order and the order on reconsideration.

The order on reconsideration addresses only certain aspects of the new/omitted

condition claim, otherwise simply “republish[ing]” the board’s initial January

2017 order. The initial order includes the board’s analysis of the occupational

disease claim, and it is the order from which we have drawn our discussion of the

facts and the pertinent board findings and conclusions. Neither party contends

that any aspect of the matters addressed expressly in the order on reconsider-

ation are pertinent to this judicial review.

536 Johnston v. Gordon Trucking - Heartland Express

employment conditions were the major contributing cause of

the disease. See ORS 656.802(2)(a) (“The worker must prove

that employment conditions were the major contributing

cause of the disease.”). Moreover, claimant does not dispute

that “[t]he major contributing cause of a disease is the pri-

mary cause—i.e., the cause that contributes more than all

other causes combined.” Lowells v. SAIF, 285 Or App 161,

164, 396 P3d 241 (2017). Cf. Franke v. Lamb-Weston, Inc.,

165 Or App 517, 521, 997 P2d 876 (2000) (explaining, in a

different workers compensation context, that to determine

the “major contributing cause” of a condition, “the quantita-

tive contribution of each cause must be weighed to establish

the primary cause of claimant’s need for treatment”).

Thus, claimant ultimately acknowledges, at least

implicitly, that he had the burden to prove that his employ-

ment conditions contributed more to his disease than all

other causes combined. He describes his burden as having

to show, by a preponderance of the evidence, “that he suf-

fered the claimed work exposure and injury and * * * that

it contributed to his condition and is the major contributing

cause.” Nonetheless, claimant argues that, to the extent that

employer contends that factors other than work contributed

more to claimant’s disease than work did, then employer

bore the burden to prove “that claimant in fact has those

factors and that they are not work-related.” As we under-

stand claimant’s theory, it is that, once a worker asserting

an occupational disease claim makes a showing—perhaps

a sort of prima facie case—that employment conditions

were the major contributing cause of the worker’s disease,

the burden shifts to the worker’s employer to prove that

any other contributing factors (not employment conditions)

were actually the major contributing cause. That is because,

according to claimant, “no statute assigns a burden of proof

for the nonwork-related factors that are put on the other side

of the scale,” so the burden must be on the party that wishes

to establish the existence of those nonwork-related factors,

i.e., the employer. Cf. Harris v. SAIF, 292 Or 683, 690, 642

P2d 1147 (1982) (“The general rule is that the burden of

proof is upon the proponent of a fact or position, the party

who would be unsuccessful if no evidence were introduced

on either side.”).

Cite as 305 Or App 531 (2020) 537

We find no support in ORS chapter 656 for claim-

ant’s argument. ORS 656.266(1) and ORS 656.802(2)(a)

state plainly that a worker bears the burden to prove the

compensability of an occupational disease claim by estab-

lishing that employment conditions were the major contrib-

uting cause of the disease, i.e., that work contributed more

than all other causes combined. No other statute provides,

as claimant suggests, that the burden of persuasion shifts to

the employer if the worker makes an initial showing of com-

pensability. And, significantly, the legislature has expressly

enacted burden-shifting schemes in other workers’ com-

pensation contexts, suggesting that it would have done so

with respect to ordinary occupational disease claims, if that

is what it intended. See generally, e.g., SAIF v. Thompson,

360 Or 155, 161, 379 P3d 494 (2016) (explaining that ORS

656.802(4)—the statute creating the firefighters’ presump-

tion for some occupational diseases—shifts the burdens of

production and persuasion to the employer once the claim-

ant has proved certain predicate facts).

Nor does prior case law support claimant’s argu-

ment. The case on which claimant primarily relies, Harris,

merely states the unremarkable proposition that the burden

of proof generally is on the proponent of a particular proposi-

tion, that is, “the party who would be unsuccessful if no evi-

dence were introduced on either side.” 292 Or at 690. Here,

claimant is the proponent of his allegation that employment

conditions were the major contributing cause of his lum-

bar arthritis and degenerative disc disease, and he could

not prevail on his occupational disease claim in the absence

of any evidence. Thus, the general rule discussed in Harris

is consistent with ORS 656.266(1) and ORS 656.802(2)(a),

which expressly give claimant the burden of proving that

allegation.

The precise nature of that burden is significant. To

prevail, the claimant has the burden of showing not only

that employment conditions contributed to his disease, but

that those conditions were the major contributing cause of

his disease. As claimant notes, a worker can meet that bur-

den without “eliminat[ing] all other possible explanations of

causation.” Magana v. Wilbanks International, 112 Or App

538 Johnston v. Gordon Trucking - Heartland Express

134, 136, 826 P2d 1058 (1992). Nonetheless, the claimant

still must persuade the factfinder that employment condi-

tions were the major contributing cause. That task will be

more challenging where evidence suggests the existence of

nonwork-related contributions. And—just as the burden of

persuasion does not shift to a defendant in a negligence case

merely because the defendant offers evidence that factors

other than its negligence caused the plaintiff’s injury—the

burden of persuasion does not shift to an employer defend-

ing against an occupational disease claim merely because

it offers evidence that nonwork-related factors contributed

more to the claimant’s disease than work conditions did. We

reject claimant’s contrary argument.

We turn to claimant’s argument that the board

erred when it found that “claimant’s aging process, contrib-

uted to by his genetics, was an active, ongoing contributor

to the development of his lumbar arthritis and degenerative

disc disease” and, relatedly, when it concluded that claimant

had not met his burden of proving that employment condi-

tions were the major contributing cause of his disease. In

that regard, the board relied on the opinions of Rosenbaum

and Ferguson, both of whom opined that aging was an active

cause of claimant’s underlying degenerative conditions.

The board’s order describes how Rosenbaum explained the

mechanism of that causation:

“Dr. Rosenbaum opined that claimant has spondylosis

and degenerative disc disease throughout his lumbar

spine, resulting in L2-3 through L5-S1 degenerative disc

bulges. He explained that over time, as part of the aging

process, with active contribution from genetics, the discs,

which act as shock absorbers between the vertebrae, begin

to dry out, crack/tear, and bulge. He observed that this pro-

cess reduces the space and padding between the vertebrae,

resulting in degeneration and inflammation of the facet

joints, and subjecting the spine to more stress from lifting,

flexion, and torsion. In reviewing claimant’s July 2014 lum-

bar MRI, he observed degenerative disc signals, disc space

narrowing, and facet degeneration.”

Rosenbaum also opined, at multiple points during

the claims process, that claimant’s work activities were not

the major contributing cause of claimant’s degenerative

Cite as 305 Or App 531 (2020) 539

disc disease or his spondylosis.2 Indeed, Rosenbaum cited

studies supporting the proposition that physical activities

related to occupational exposure are not the major contrib-

uting cause of such conditions, but that “disc degeneration is

likely explained primarily by genetic influences and by other

unidentified factors.” Rosenbaum concluded that, overall,

claimant’s “life-long work activities are not the major con-

tributing cause of his claimed conditions.”

The board explained that Rosenbaum’s opinion was

supported by that of Ferguson, who reasoned that claim-

ant’s July 2014 injury prolonged the need for treatment of

the combined condition (the work injury combined with the

underlying degenerative conditions) for a period of time, but

that the injury “did not accelerate the degenerative process

or preponderate in the cause” of claimant’s underlying con-

ditions. (Emphasis added.) As the board noted, Ferguson

opined that “aging causes a loss of elasticity and drying of

the disc, which puts the disc at increased risk of injury as

the disc narrows and the facets are ‘jammed more together’

and develop inflammation.” According to Ferguson, the

degenerative condition “may or may not be symptomatic at

that point,” but an injury “sets it off and makes you acutely

aware that you have back pain and issues.” As specific to

claimant, Ferguson agreed with Rosenbaum that the major

contributing cause of claimant’s degenerative disc disease

and disc bulging “is an underlying degenerative process.”

Apparently departing somewhat from Rosenbaum’s view,

Ferguson opined that work exposure was also a contrib-

uting factor to claimant’s degenerative disc disease and

lumbar arthritis. However, he acknowledged that imaging

of claimant’s spine showed “really about what [Ferguson]

would expect to see” in a man of claimant’s age, and that

the degenerative conditions were not accelerated. Ferguson

concluded that aging and genetic factors were active con-

tributors to the development of claimant’s degenerative disc

disease and spondylosis, that those contributions probably

2

In discussing claimant’s underlying conditions, Rosenbaum used the term

“lumbar spondylosis” to refer to “degenerative arthritis of the lumbar spine.”

Ferguson disagrees that those terms should be equated; he views arthritis as

different from spondylosis. The parties do not attribute any significance to that

disagreement, and the disagreement does not affect our analysis.

540 Johnston v. Gordon Trucking - Heartland Express

outweighed contributions from claimant’s work, and that

the major contributing cause of the need for treatment of

the preexisting degenerative conditions was the conditions

themselves, and not claimant’s work injury.

On judicial review, claimant does not dispute that

aging was an active contributor to his disease.3 Rather, he

argues that—at least on this record—contributions from

aging must be viewed as related to employment conditions

and, therefore, the board should have put contributions

from aging on the “work-related” side of the scale when per-

forming the “major contributing cause” analysis. Claimant

observes generally that, “[a]s a person ages, that person

gathers further work exposure” and that, as specifically

pertinent here, claimant worked for employer for 35 years,

while “both ‘aging’ and being exposed to the harmful work

activity.”

Claimant’s argument fails because the record in

this case does not compel a finding that contributions from

aging must be viewed as related to claimant’s employment.

As noted above, Rosenbaum cited studies indicating that

aging and genetic factors themselves predominate in causing

conditions like degenerative disc disease, and that physical

mechanisms associated with work do not. Rosenbaum also

opined specifically that claimant’s life-long work activities

were not the major cause of his claimed conditions. Given

that evidence, the board could find, as it did, that claim-

ant had not met his burden of proving that employment

conditions were the major contributing cause of his claimed

occupational disease. Nor was the board required to be

3

A preexisting condition that actively contributes to the cause of a condition

may be weighed against contributions from employment conditions and other

factors as part of the “major contributing cause” calculation for an occupational

disease claim. SAIF v. Dunn, 297 Or App 206, 217, 439 P3d 1011, rev den, 365 Or

557 (2019). However, “a preexisting condition that only predisposes or makes a

worker more susceptible to an occupational disease, but that does not contribute

to the cause of the condition, is not a part of the causation equation.” Id. at 216-17.

Claimant argued to the board that aging and genetics were mere susceptibilities,

rather than active contributors to his disease. The board rejected that argument,

concluding that medical evidence “establish[ed] that claimant’s aging process,

contributed to by his genetics, was an active, ongoing contributor to the develop-

ment of his lumbar arthritis and degenerative disc disease, and was not merely a

passive risk factor or susceptibility.” Claimant does not renew the “mere suscep-

tibility” argument on judicial review.

Cite as 305 Or App 531 (2020) 541

persuaded, based on Ferguson’s opinion that work played

a role in the development of claimant’s degenerative condi-

tions, that claimant had proved that work was the major

contributing cause of those conditions.

We turn, briefly, to claimant’s assertion that the

board “erred in considering genetics as a factor” in the “major

contributing cause” analysis. That assertion relates to the

board’s statement that “claimant’s aging process, contrib-

uted to by his genetics, was an active, ongoing contributor

to the development of his lumbar arthritis and degenerative

disc disease * * *.” According to claimant, the board could

not properly take genetics into account because the record

includes no medical evidence, specific to claimant, that

genetic factors contributed to his claimed degenerative con-

ditions. In our view, claimant places too much significance

on the board’s mention of genetics. The board did not pur-

port to find that claimant had some specific genetic charac-

teristic that—independently of aging—resulted in an active

contribution to claimant’s lumbar arthritis and degenera-

tive disc disease. Rather, we read the order to reflect only

an observation by the board (based on the opinions of both

Rosenbaum and Ferguson) that the way in which the aging

process causes degenerative changes to a person’s spine is

influenced by that person’s genetic makeup. Claimant has

not established that the board erred when it acknowledged

that genetic factors influence how a person’s body ages.

In sum, the board did not err when it placed the

burden on claimant to prove the existence of a compensable

occupational disease. Nor did the board err when it consid-

ered contributions from aging, as influenced by genetics, to

be nonwork-related factors that contributed to claimant’s

lumbar arthritis and degenerative disc disease. Accordingly,

claimant has not established that the board erred when it

found itself unpersuaded that employment conditions were

the major contributing cause of the claimed occupational

disease.

Affirmed.