Carrillo v. SAIF

8

Argued and submitted November 9, 2020, reversed and remanded

March 17, 2021

In the Matter of the Compensation of

Mario Carrillo, Claimant.

Mario CARRILLO,

Petitioner,

v.

SAIF CORPORATION

and Medford School District 549C,

Respondents.

Workers’ Compensation Board

1303729; A169786

484 P3d 398

Claimant seeks judicial review of an order of the Workers’ Compensation

Board on remand adhering to its conclusions that claimant’s left shoulder con-

dition was a combined condition as a combination of a preexisting condition and

symptoms of the preexisting condition and that SAIF had met its burden under

ORS 656.266 to establish that the claim was not compensable, because the work

incident was not the major contributing cause of claimant’s need for treatment

of or disability from the condition. Held: A “combined condition” is two separate

conditions that combine to cause symptoms or disability. A preexisting condition

and its symptoms are not separate conditions. The board therefore erred in con-

cluding that claimant’s claim was a combined condition.

Reversed and remanded.

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

petitioner.

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

respondents.

Richard B. Myers and Bennett Hartman, LLP, filed the

brief amicus curiae for Oregon Trial Lawyers Association.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Aoyagi, Judge.

ARMSTRONG, P. J.

Reversed and remanded.

Cite as 310 Or App 8 (2021) 9

ARMSTRONG, P. J.

This case is before us a second time for judicial

review of a Workers’ Compensation Board order upholding

SAIF’s denial of claimant’s initial injury claim for a left

shoulder condition. In Carrillo v. SAIF, 291 Or App 589, 420

P3d 636 (2018) (Carrillo I), we remanded the board’s order

for reconsideration in light of the Supreme Court’s opinion

in Brown v. SAIF, 361 Or 241, 272, 391 P3d 773 (2017) (con-

struing an “otherwise compensable injury” to be a medical

condition that results from the work accident, and not the

work accident itself, for purposes of ORS 656.005(7)(a)(B)).

On reconsideration, the board adhered to its original order

determining that claimant’s shoulder injury claim was for

a “combined condition” as defined in ORS 656.005(7)(a)(B)1

and upholding SAIF’s denial. The narrow issue before us on

this judicial review is whether the board properly treated

the claim as one for a combined condition. We review the

board’s order for substantial evidence and legal error, ORS

183.484(8)(a), (c), conclude that the board erred in treating

the claim as one for a combined condition, and therefore

reverse and remand the board’s order.

We quote from our first opinion summarizing the

facts and procedural history:

“Claimant, who works as a custodian, filed an injury

claim based on symptoms he experienced in his left shoul-

der after a day of heavy lifting at work. SAIF denied the

claim, asserting that the work injury had combined with

preexisting conditions and was not the major contributing

cause of the combined condition. See ORS 656.005(7)(a)(B).

“Claimant filed a request for hearing. The board found

that claimant has a preexisting condition in his left shoul-

der as defined by ORS 656.005(24), and that finding is sup-

ported by substantial evidence. There is also substantial

evidence in the record to support the board’s finding that

the day of heavy lifting was a material contributing cause

1

ORS 656.005(7)(a)(B) provides:

“If an otherwise compensable injury combines at any time with a pre-

existing condition to cause or prolong disability or a need for treatment, the

combined condition is compensable only if, so long as and to the extent that

the otherwise compensable injury is the major contributing cause of the dis-

ability of the combined condition or the major contributing cause of the need

for treatment of the combined condition.”

10 Carrillo v. SAIF

of claimant’s disability and need for treatment of the pre-

existing condition. The evidence in the record is mixed as

to whether claimant experienced a new ‘injury’ on the day

of heavy lifting. The board did not explicitly resolve that

issue, because it concluded, relying on this court’s opinion

in Brown v. SAIF, 262 Or App 640, 325 P3d 834 (2014), that

the ‘work related injury/incident,’ i.e., the day of heavy lift-

ing, was an ‘otherwise compensable injury’ that combined

with the preexisting condition to cause disability and the

need for treatment. But the board also found that SAIF had

presented persuasive evidence that the work-related injury

incident was not the major contributing cause of claimant’s

disability and need for treatment of the combined condi-

tion, and concluded that the claim therefore was not com-

pensable under ORS 656.005(7)(a)(B).

“The Supreme Court reversed our decision in Brown,

holding, among other conclusions, that an ‘otherwise

compensable injury’ for purposes of ORS 656.005(7)(a)(B)

equates with an ‘accepted condition.’ 361 Or at 261. Because

our opinion in Brown was central to the parties’ arguments

and to the board’s analysis, we remand for reconsideration

in light of the Supreme Court’s opinion.”

Carrillo I, 291 Or App at 590-91. On remand, the board

reconsidered the medical record under the legal framework

for combined condition claims set forth in the Supreme

Court’s opinion in Brown. The board was persuaded by med-

ical evidence that claimant’s work activities had precipi-

tated symptoms of a preexisting condition and that those

symptoms had “combined” with the preexisting condition

itself but had not caused a new condition. The board further

found that claimant’s work activities were a material con-

tributing cause but not the major contributing cause of his

need for treatment or disability of the combined condition.

The board thus adhered to its conclusion that SAIF had met

its burden under ORS 656.2662 to establish that claimant’s

2

ORS 656.266(2) provides:

“* * * [F]or the purpose of combined condition injury claims under ORS

656.005 (7)(a)(B) only:

“(a) Once the worker establishes an otherwise compensable injury, the

employer shall bear the burden of proof to establish the otherwise compensa-

ble injury is not, or is no longer, the major contributing cause of the disability

of the combined condition or the major contributing cause of the need for

treatment of the combined condition.”

Cite as 310 Or App 8 (2021) 11

left shoulder condition was a combined condition and was

not compensable because the February 2013 work incident

was not the major contributing cause of his need for treat-

ment of or disability from the condition.

In support of its conclusion that the claim was

for a combined condition, the board reasoned that, under

Multifoods Specialty Distribution v. McAtee, 333 Or 629, 636,

43 P3d 1101 (2002), a “combined condition” is “two medi-

cal problems simultaneously.” Although claimant’s work

incident had not caused a separate medical condition, the

board was persuaded that claimant’s symptomatic flareup

of his preexisting condition—caused in material part by the

work incident—was a medical problem separate from the

preexisting condition that combined with the preexisting

condition. The board rejected claimant’s contentions that

a combined condition consists of two separate medical con-

ditions that combine and that a symptomatic flareup of a

preexisting condition cannot combine with the preexisting

condition itself.

We agree with claimant that the board erred. As

the Supreme Court pointed out in Brown, the term “com-

bined condition” suggests two separate conditions that com-

bine. 361 Or at 255-56; see also ORS 656.005(7)(a)(B). The

Supreme Court’s statement in McAtee, on which the board

relied, that a combined condition involves “two medical prob-

lems simultaneously” is not inconsistent with that reason-

ing. Indeed, in McAtee, the court said that “[a] combined con-

dition occurs when a new injury combines with an old injury

or pre-existing condition to cause or prolong either disability

or a need for treatment.” 333 Or at 634. See Fred Meyer, Inc.

v. Evans, 171 Or App 569, 573, 15 P3d 1261 (2000) (“The

operative principle [of ORS 656.005(7)(B)] is that multiple

conditions combine to create a disability or need for treat-

ment.”); Luckhurst v. Bank of America, 167 Or App 11, 16-17,

1 P3d 1031 (2000) (“[I]n order for there to be a ‘combined

condition,’ there must be two conditions that merge or exist

harmoniously * * * rather than one condition made worse” by

a work-related injury.); Multifoods Specialty Distribution v.

McAtee, 164 Or App 654, 662, 993 P2d 174 (1999), aff’d, 333

Or 629, 43 P3d 1101 (2002) (“[A] combined condition may

constitute either an integration of two conditions or the close

12 Carrillo v. SAIF

relationship of those conditions.”). A preexisting condition

and its symptoms are not separate conditions. See Arms v.

SAIF, 268 Or App 761, 770-71, 343 P3d 659 (2015) (distin-

guishing a combined condition from a worsening of a pre-

existing condition and noting that “ORS 656.225(1) and (2)

contemplate medical services for preexisting conditions

that are worsened by work conditions or events”). The board

should consider in the first instance whether claimant’s

symptomatic flareup is compensable as a worsening of his

preexisting condition.

Other cases cited by the parties have not involved

the issue presented here—whether a combined condition

can derive from a preexisting condition and its symptoms.

For example, Brown involved an accepted injury claim for a

lumbar strain that was found to have combined with a pre-

existing degenerative back condition. The question in Brown

was whether, for purposes of determining the continued

compensability of the combined condition, the “otherwise

compensable injury,” as used in ORS 656.005(7)(a)(B), was

limited to the accepted lumbar strain or also included other

conditions not accepted that might have resulted from the

same work-related accident that caused the lumbar strain.

361 Or at 282. The court held that, in the context of a com-

bined condition claim involving a previously accepted injury,

the term “injury,” as used in the phrase “otherwise compen-

sable injury,” ORS 656.005(7)(a)(B), refers to the injury or

condition that has been accepted. Id.

Our opinion in Hammond v. Liberty Northwest Ins.

Co., 296 Or App 241, 437 P3d 269 (2019), involved a differ-

ent factual scenario and a claim for death benefits. There,

the worker had a preexisting cancer in his femur and suf-

fered a fracture—ultimately leading to his death—while

walking at work. Id. at 242. The medical evidence was that

the weight-bearing activity of walking had combined with

the preexisting cancer to cause the fracture. Id. Unlike in

Brown, there had been no previously accepted condition.

Id. at 245. The board viewed the claim as a combined condi-

tion claim and identified the fracture as an “otherwise com-

pensable injury,” because it had been caused in material part

by the walking. We implicitly rejected an analysis requiring

that, to establish an initial claim for a combined condition

Cite as 310 Or App 8 (2021) 13

in the absence of a previous acceptance, there must be an

“otherwise compensable injury” that combines with a pre-

existing condition. We reasoned that an initial claim itself

can be a combined condition when a work incident, together

with a preexisting condition, cause a separate injury. We

held in Hammond that the femur fracture—brought on in

part by work activity and in part by the cancer—was the

combined condition. Id. at 245-47.

Claimant asks us to reconsider Hammond, contend-

ing that it is inconsistent with Brown to the extent that it

applies a different test to determine the existence of a com-

bined condition in the context of an initial injury claim. But

Hammond, like Brown, did not address the narrow question

presented here, whether symptoms of a preexisting condi-

tion brought on by work activity can “combine” with the pre-

existing condition to give rise to a combined condition. For

that reason, this case does not present an opportunity to

reconsider Hammond. To the extent that Hammond might

be understood to hold that a “symptom” of a preexisting

condition and the preexisting condition itself can “combine”

to give rise to a combined condition, that understanding is

disavowed.

We conclude that the board erred in determining

that the symptoms of claimant’s preexisting shoulder con-

dition combined with the preexisting condition itself to give

rise to a combined condition claim. We therefore reverse and

remand the board’s order for reconsideration.

Reversed and remanded.