Pedro v. SAIF

34

Argued and submitted July 28, 2020, reversed and remanded July 8, 2021

In the Matter of the Compensation of

Maria I. Pedro, Claimant.

Maria I. PEDRO,

Petitioner,

v.

SAIF CORPORATION;

and Ingallinas Box Lunch, Inc.,

Respondents.

Workers’ Compensation Board

1705593; A170708

495 P3d 183

Claimant petitions for judicial review of a final order of the Workers’

Compensation Board (board). At issue is the board’s affirmance of SAIF

Corporation’s denial of claimant’s omitted condition claim under ORS 656.267(1)

for an L4-5 disc protrusion. Although the board found that the disc protrusion

was caused in material part by the workplace injury that led to claimant’s orig-

inal claim, it determined that the disc protrusion was part of a “combined con-

dition,” and that the major cause of claimant’s disability or need for treatment

was claimant’s preexisting arthritis. The board therefore determined that claim-

ant’s disc protrusion was not compensable. On appeal, claimant contends that

the board applied an incorrect legal standard in determining that the L4-5 disc

protrusion is part of a combined condition and also that substantial evidence does

not support that determination. Held: The board’s determination that claimant’s

L4-5 disc protrusion was part of a combined condition with claimant’s preexisting

arthritis was not supported by substantial evidence because the evidence on the

record did not explain how those medical conditions combined.

Reversed and remanded.

Julene M. Quinn argued the cause for petitioner. On the

briefs was Theodore P. Heus.

Allison Lesh argued the cause and filed the brief for

respondents.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

LAGESEN, P. J.

Reversed and remanded.

Cite as 313 Or App 34 (2021) 35

LAGESEN, P. J.

Claimant petitions for judicial review of a final

order of the Workers’ Compensation Board (board). At issue

is the board’s affirmance of SAIF Corporation’s denial of

claimant’s omitted condition claim under ORS 656.267(1)

for an L4-5 disc protrusion. Although the board found that

the L4-5 disc protrusion was caused in material part by the

workplace injury that led to claimant’s original claim, it

determined that the L4-5 disc protrusion was part of a “com-

bined condition,” and that the major cause of claimant’s dis-

ability or need for treatment resulting from that combined

condition was claimant’s preexisting arthritis. Because of

those conclusions, the board determined that claimant’s

L4-5 disc protrusion was not compensable, notwithstand-

ing the fact that claimant’s workplace injury was a mate-

rial cause of the protrusion. Before us, claimant contends

that the board applied an incorrect legal standard in deter-

mining that the L4-5 disc protrusion is part of a combined

condition and also that substantial evidence does not sup-

port that determination. We agree that substantial evidence

does not support the board’s finding that claimant’s L4-5

disc protrusion is part of a combined condition within the

meaning of ORS 656.005(7)(a)(B), as interpreted in Brown

v. SAIF, 361 Or 241, 391 P3d 773 (2017). Accordingly, we

reverse and remand.

Although claimant disputes the board’s finding that

her L4-5 disc protrusion is part of a combined condition,

she does not otherwise contest the board’s factual findings.

Accordingly, we draw the following undisputed facts from

the board’s order.1

Claimant works for a catering business. She

injured her back at work in May 2017 while lifting and car-

rying boxed orders. SAIF accepted a claim, identifying the

accepted condition as a lumbar strain.

In November 2017, claimant requested SAIF to

accept, among other conditions, a disc protrusion at L4-5.

Claimant asserted that the L4-5 disc protrusion was caused

1

Our reference to the board’s order includes the administrative law judge’s

order, which the board adopted and affirmed with some supplementation.

36 Pedro v. SAIF

in material part by the May 2017 incident and should

be accepted as a new or omitted condition under ORS

656.267(1). SAIF denied the request, stating that it had

determined that the condition was not compensably related

to the work injury. Claimant requested a hearing. Following

that hearing, the administrative law judge (ALJ) upheld

SAIF’s denial. She determined that “the work injury was

at least a material contributing cause of the disability/need

for treatment for the L4-5 disc protrusion,” a determination

that would ordinarily make the condition compensable. See

Hopkins v. SAIF, 349 Or 348, 351, 245 P3d 90 (2010) (“To

establish a ‘compensable injury,’ the worker must prove that

a work-related injury is a material contributing cause of a

disability or need for treatment.”).

The ALJ nonetheless determined that SAIF’s denial

was proper because it had proved that claimant has a “com-

bined condition” involving her preexisting arthritis, and

that claimant’s disability or need for treatment of that com-

bined condition was caused in major part by claimant’s pre-

existing arthritis. Claimant sought review before the board,

which adopted and affirmed the ALJ’s decision with sup-

plemental analysis addressing the rejection of the omitted

condition claim for the L4-5 disc protrusion.

Claimant petitioned this court for judicial review.

On review, she contends that the board erred in two related

respects. Claimant contends that, in view of Brown, the

board relied on a wrong legal standard in denying claim-

ant’s omitted-condition claim on the basis that the omitted

condition was part of a combined condition. Under Brown,

claimant asserts, a combined condition, as defined by ORS

656.005(7)(a)(B), is one that entails two separate conditions

combining. See 361 Or at 255-56. Because, in claimant’s

view, “a combined condition requires [a showing that] two

discrete, identifiable medical conditions” combined, and “the

board relied on an expert who never evaluated or weighed

the claimed L4-5 disc protrusion against the preexisting

arthritis,” the board necessarily applied the wrong legal

standard in determining whether claimant had a combined

condition. Claimant additionally contends that there is no

substantial evidence to support a finding that the L4-5 disc

protrusion combined with claimant’s preexisting arthritis,

Cite as 313 Or App 34 (2021) 37

because, in claimant’s view, there is no evidence address-

ing how the L4-5 disc protrusion combined with claimant’s

preexisting arthritis to result in an identifiable combined

condition.

In response, SAIF acknowledges that the board’s

analysis of whether claimant’s L4-5 disc protrusion is part

of a combined condition does not track the Supreme Court’s

analysis in Brown. Rather, SAIF contends that Brown allows

for different approaches to combined conditions depend-

ing on context, something that would allow for the board’s

approach here. SAIF points to the Supreme Court’s deci-

sion in Multifoods Specialty Distribution v. McAtee, 333 Or

629, 636, 43 P3d 1101 (2002), in which the court described a

“combined condition” as “two medical problems [occurring]

simultaneously.” In SAIF’s view, under that standard, the

expert opinion on which the board relied supports its find-

ing of a combined condition because the expert analyzed

“the impact of the work event on the L4-5 disc pathology and

the preexisting arthritis.” SAIF additionally points to our

decision in Hammond v. Liberty Northwest Ins. Corp., 296

Or App 241, 437 P3d 269 (2019), as supporting the analysis

employed by the board. SAIF argues that, under Hammond,

it is not necessary for it to show that “two discrete, identi-

fiable medical conditions” combined in order for it to prove

a combined condition. Beyond that, SAIF contends, when

the Hammond analysis is applied, the record supports the

board’s finding that claimant has a cognizable combined

condition.

In a memorandum of additional authorities filed

after argument, claimant points to our recent decision in

Carrillo v. SAIF, 310 Or App 8, 484 P3d 398 (2021), as clari-

fying our decision in Hammond, and, additionally, as reject-

ing SAIF’s reading of McAtee, to the extent that SAIF reads

McAtee as holding that a determination that a claimant has

two medical problems simultaneously is sufficient to estab-

lish a combined condition.

To the extent claimant’s arguments challenge the

board’s interpretation of the workers compensation statute,

our review is to determine whether the board “erroneously

interpreted a provision of law.” ORS 183.482(8)(a). To the

38 Pedro v. SAIF

extent claimant challenges the sufficiency of the evidence

supporting the board’s finding of a combined condition, our

review is to determine whether the board’s finding is sup-

ported by substantial evidence, that is, whether “the record,

viewed as a whole, would permit a reasonable person to

make that finding.” ORS 183.482(8)(c).

Both parties’ arguments have force. As the Supreme

Court acknowledged in Brown, “the relevant statutes are

rife with ambiguities.” 361 Or at 283. Ultimately, we con-

clude that claimant’s view is the one that gives effect to the

Supreme Court’s interpretation of “combined condition” in

ORS 656.005(7)(a)(B), and, further, when “combined condi-

tion” is given the meaning announced in Brown, that sub-

stantial evidence does not support the board’s finding of a

combined condition.

As defined by ORS 656.005(7)(a)(B), a “combined

condition” is a condition that occurs “[i]f an otherwise com-

pensable injury combines at any time with a preexisting

condition to cause or prolong disability or a need for treat-

ment.” In Brown, the court held “that the ‘injury’ component

of the phrase ‘otherwise compensable injury’ in ORS 656.005

(7)(a)(B) refers to a medical condition, not an accident.” 361

Or at 272. Here, claimant has established, and SAIF does

not at this point dispute, that the workplace accident was

a material cause of claimant’s medical condition of an L4-5

disc protrusion. That means that claimant’s L4-5 disc pro-

trusion is an “injury” within the meaning of ORS 656.005

(7)(a)(B) that is otherwise compensable because of its mate-

rial causal connection to the May 2017 workplace incident.

Hopkins, 349 Or at 351.

Accordingly, to deny claimant’s claim for that spe-

cific medical condition on the grounds that it was part of

a combined condition with claimant’s preexisting arthritis,

SAIF had to introduce evidence showing (1) how the L4-5

disc protrusion combined with claimant’s preexisting arthri-

tis to result in a disability or need for treatment; and (2) that

the L4-5 disc protrusion was not the major cause of the dis-

ability or need for treatment resulting from that combined

condition. As the parties appear to agree, the evidence in

the record does not address that formulation of a combined

Cite as 313 Or App 34 (2021) 39

condition. In particular, Dr. Button’s opinion, on which the

board based its finding of a combined condition, does not ana-

lyze how the L4-5 disc protrusion interacts with preexisting

arthritis so as to result in a combined condition. This, per-

haps, is not surprising, because Button’s opinion was that

the May 2017 incident was not even a material cause of the

L4-5 disc protrusion. In any event, Button’s analysis focused

on the role that the May 2017 work incident played in claim-

ant’s need for treatment of the L4-5 disc protrusion and did

not explain how the L4-5 disc protrusion combined with

the preexisting arthritis. Further, Button did not appear to

evaluate which of those two particular medical conditions

played the greater causal role in the disability or need for

treatment that claimant experienced as a result of the inter-

action of those two specific medical conditions.

Hammond is not to the contrary. Recently, in

Carrillo, we explained that “the term ‘combined condition’

suggests two separate conditions that combine.” 310 Or App

at 11 (emphasis omitted). We clarified that Hammond stood

for the narrow proposition that “an initial claim itself can be

a combined condition when a work incident, together with a

preexisting condition, cause a separate injury.” Id. at 13. In

that case, the identified combined condition was a fracture

that was caused by the claimant’s work activity in combina-

tion with the claimant’s preexisting cancer. Id. at 12.

This case, in contrast with Hammond, does not

involve the circumstances that led us to conclude that the

Brown analysis did not apply in that case. It does not involve

an initial injury claim or a claim that SAIF should have

accepted a specific medical condition that, in and of itself,

constituted a combined condition. Rather, this case involves

a request that SAIF accept, as an omitted condition, an

L4-5 disc protrusion that, it is undisputed at this point,

was caused in material part by claimant’s workplace injury.

Although that omitted condition had not yet been accepted

at the time that the board conducted its combined-condition

analysis, we do not understand why that would alter the

analysis where, as here, a claimant has proved that a spe-

cific medical condition was caused in material part by

the workplace incident. Under such circumstances, and

in contrast with the situation in Hammond, it is possible

40 Pedro v. SAIF

to analyze whether a claimant has a combined condition

under the Brown framework for combined conditions, and

SAIF has not persuaded us that there is a reason to deviate

from the Brown approach in the context of a request that an

insurer accept an omitted condition caused in material part

by a workplace incident for which the insurer previously has

accepted other conditions found to be caused in material

part by the same workplace incident.

In sum, in view of Brown’s explanation of what it

means to be a “combined condition” under ORS 656.005

(7)(a)(B), and the particular medical evidence in this case,

the board’s determination that claimant’s L4-5 disc pro-

trusion is part of a combined condition with claimant’s pre-

existing arthritis is not supported by substantial evidence.

We therefore reverse and remand.

Reversed and remanded.