Sexton v. Sky Lakes Medical Center

185

Argued and submitted February 10, 2020, affirmed September 1, 2021

In the Matter of the Compensation of

Phyllis D. Sexton, Claimant.

Phyllis D. SEXTON,

Petitioner,

v.

SKY LAKES MEDICAL CENTER,

Respondent.

Workers’ Compensation Board

1600049; A167536

496 P3d 1056

In this appeal of a Workers’ Compensation Board (board) order affirming

denial of certain benefits, petitioner assigns error to the administrative law

judge’s (ALJ) application of the major contributing cause standard rather than

the material cause standard. Specifically, petitioner argues that the ALJ and

board erred by concluding that her injuries constituted a combined condition,

involving both preexisting conditions and workplace injuries, rather than arising

solely from work. Petitioner argues that in the context of a new or omitted condi-

tion claim, an employer must have previously accepted a medical condition before

the employer may treat a subsequent claim as part of a combined condition and

deny it on major contributing cause grounds. Held: The relevant statutes do not

require an employer to have previously accepted a noncompensable preexisting

condition in order to later deny benefits on major contributing cause grounds.

Since the statutes do not impose such a requirement, the ALJ and board did not

err in analyzing petitioner’s claim under the major contributing cause standard

rather than the material cause standard.

Affirmed.

James S. Coon argued the cause for petitioner. Also on

the briefs was Thomas, Coon, Newton & Frost.

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

respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and

James, Judge.

JAMES, J.

Affirmed.

186 Sexton v. Sky Lakes Medical Center

JAMES, J.

Claimant had a history of back problems that pre-

dated a workplace injury. She filed a claim for the injury, and

employer, Sky Lakes Medical Center, accepted a claim for a

left hip contusion. Claimant went on to file a new or omitted

condition claim for an L4-5 disc bulge, pseudoclaudication,

and a subacute fracture involving the anterior body in the

upper lumbar spine—which employer denied. An admin-

istrative law judge (ALJ) and the Workers’ Compensation

Board (board) upheld the denial, finding in part that claim-

ant had not proven the existence of her claimed pseudoclau-

dication and subacute fracture conditions. The ALJ and the

board further found that, although claimant had met her

burden of establishing the existence and material causation

of the L4-5 disc bulge, employer met its burden to estab-

lish that it was claimant’s preexisting condition, and not the

claimed workplace injury, that was the major contributing

cause of the disability/need for treatment of the combined

L4-5 disc bulge condition. Claimant seeks judicial review

of that order, arguing that employer improperly denied, and

the board improperly analyzed, her L4-5 disc bulge claim as

a “combined condition” claim under ORS 656.005(7)(a)(B).

Specifically, claimant argues that, in the context of a “new or

omitted condition claim,” an employer must have previously

accepted a medical condition before it can treat the new or

omitted condition claim as part of a “combined condition”

and deny it as such. We conclude otherwise, and therefore

affirm the board’s order.

The relevant facts are not in dispute. Claimant

began working in 1972 for employer as a nurse and an edu-

cator. In October 2012, claimant was injured at work when

she tried to prevent a patient from falling, after which she

experienced pain in her back, buttocks, and legs. After an

MRI showed “L3-4 and L4-5 disc herniations,” claimant

underwent steroid injections by Dr. Wenner. About eight

months later, Wenner deemed her medically stationary,

“with an increased risk of future disc herniation or back

pain,” and released her to full activity without restriction.

Employer accepted the claim as a disabling lumbar strain,

paid temporary disability (time-loss) for December 2012

through February 2013, and closed the claim.

Cite as 314 Or App 185 (2021) 187

After another work-related injury in 2013, claimant

again developed pain and numbness down her legs, for which

she filed an aggravation claim. Employer denied the claim

after an employer-arranged examination with independent

medical examiners (IMEs) who concluded that “claimant’s

lumbar sprain had not pathologically worsened and her pre-

existing conditions were the major contributing cause of her

disability/need for treatment.” Claimant did not contest that

denial.

On April 14, 2015, a patient at claimant’s work-

place became agitated, and while trying to escape restraint,

struck claimant, causing her to twist and forcefully strike a

doorframe. Afterwards, her back became stiff and she was

unable to move, and she felt a searing pain into her left hip

and upper thigh. On April 21, a family nurse practitioner

treated claimant for “tenderness and nerve pain down her

buttocks, down her left thigh and down the leg all the way

to the foot, with some foot numbness.” Claimant’s primary

treating physician reported that “her bruise was almost

gone and that she was having very minimal left hip pain”

and diagnosed a “left hip contusion and left sciatica from

a patient kicking her at work; almost resolved.” Employer

accepted a claim for “left hip contusion,” but did not com-

ment on the sciatica.

In September 2015, Wenner interpreted an MRI to

show “an L4-5 disc bulge, pseudoclaudication, and a sub-

acute fracture involving the anterior body in the upper lum-

bar spine without displacement,” and performed an epidural

steroid injection “at L4-5” in October. He also reported that

claimant’s “main issue was stenosis at L4-5 due to the orig-

inal disc protrusion as well as the recent injury, which had

worsened the stenosis.” As such, claimant filed a new or

omitted medical condition claim for those diagnosed condi-

tions, under the accepted April 2015 injury claim for “left

hip contusion.”

In November, after another doctor reviewed claim-

ant’s records on behalf of employer and found that her April

2015 work injury “was not the major contributing cause of

the need for treatment because of the historical preexisting

188 Sexton v. Sky Lakes Medical Center

pathology,” employer denied the new/omitted condition claim.

The denial letter stated, in relevant part:

“Empire Pacific administers the workers’ compensation

program for your employer. The above referenced claim

has been processed in accordance with Oregon law. We are

in receipt of an 827 request for acceptance of new/omitted

medical conditions on an existing claim. We are interpret-

ing this request as separate/independent new condition

claims for “L4-5 disc bulge; pseudoclaudication, and; sub-

acute fracture involving the anterior body and upper lum-

bar spine. The purpose of this letter is to deny compensabil-

ity of the newly claimed conditions relative to the April 14,

2015 work injury is not a material and/or the major contrib-

uting cause of these claimed conditions, to the extent they

exist. This is a partial denial only. We reserve the right to

amend the basis for this denial as additional information

is received. This denial is based in part on the results of an

IME. Your attending physician has yet to respond to the

IME.”

In March 2016, claimant was examined by

Dr. Conaughty on referral from her primary treating phy-

sician, who diagnosed “spinal stenosis, acute left lum-

bar radiculopathy and spinal instability” and suspected

that during her fall of April 14, 2015, the instability was

either caused or worsened. On Conaughty’s recommenda-

tion, claimant underwent surgery “at L4-5” by Wenner in

April. In May, Conaughty signed a concurrence letter from

employer, agreeing that “the preexisting arthritic changes

were the major cause of claimant’s disability and need for

treatment stemming from the L4-5 level.” In June 2016,

Wenner reported that claimant’s history and findings at

surgery were consistent with an acute injury and opined

that the April 14, 2015 work injury was the cause.

In August 2016, Dr. Bergquist examined claimant

on behalf of employer and reported that the “major cause

of claimant’s disability or need for treatment” was not the

April 2015 work injury, but rather the “preexisting condi-

tion of her lumbar spine.” In September, Dr. Teed signed a

concurrence letter, agreeing that “the major cause of claim-

ant’s L4-5 discogenic pathology and resultant disability/

need for treatment was preexisting arthritic change.” Later

Cite as 314 Or App 185 (2021) 189

that month, Bergquist reported that claimant’s 2012 and

2015 MRIs “confirmed that there were no acute changes in

the intervening three years.” He disagreed with Wenner’s

conclusion that “an L4-5 disc herniation occurred acutely

on August 14, 2015 [sic].” Rather, he stated that the 2012

MRI showed that “claimant already had a disc herniation

at L4-5.” In March 2017, he signed a concurrence letter

from employer, explaining why he disagreed with Wenner’s

opinion.

Claimant requested a hearing before an ALJ, con-

testing employer’s November 2015 denial of the new or omit-

ted condition claim. She argued that, based on the opinion of

her treating doctors, she had established the compensability

of those conditions. She also argued that the correct legal

standard in this case is a “material contributing cause” stan-

dard and that she had met her burden of proof. Employer

responded that the more persuasive expert opinions were

provided by the IME and IME-referred doctors, which in

turn established that the conditions were not compensable.

Employer also contended that it had shown that the work

injury was not the major contributing cause of claimant’s

disability and need for treatment of her combined condition.

The ALJ found that, although claimant had met

her burden to establish that the injury was a material cause

of that disability and need for treatment, employer also met

its burden (given the presence of a legally cognizable pre-

existing condition) to establish that “the ‘otherwise com-

pensable injury’ was never the major contributing cause[.]”

(Emphasis added.) Neither party challenges that finding of

fact. The ALJ went on to apply the “major cause” standard

rather than the “material cause” standard, treating the

claim as one for a “combined condition.” The ALJ therefore

upheld employer’s denial, and the board affirmed.

On judicial review, claimant contends that the ALJ

erred in treating her claim as a “combined condition” claim

and that the ALJ and board erred in upholding employer’s

denial. Specifically, she asserts first that a “combined con-

dition” analysis requires a previously accepted compensable

condition, which was absent in this case. Second, she alleges

that employer’s denial letter never denied a “combined

190 Sexton v. Sky Lakes Medical Center

condition,” but rather that employer argued for the first time

at the hearing that claimant’s condition was a “combined

condition” and that the “major contributing cause” standard

that controls such claims applied, rather than the “material

cause” standard that applies to new or omitted conditions—

which meant that the existence of a combined condition was

not properly before the board. Employer responds, first, that,

in the context of determining the compensability of a new

or omitted condition claim, a “combined condition” can exist

under ORS 656.005(7)(a)(B) without a previously accepted

condition and, second, that the denial letter “expressly denied

compensability of the L4-5 disc bulge on both material and

major contributing cause grounds, setting the stage for a

‘combined condition’ defense under ORS 656.005(7)(a)(B).”

Employer thus contends that the board properly applied

the appropriate legal standard and that the board’s order

should be affirmed.

Whether a combined condition, as defined in ORS

656.005, can exist without a previous acceptance of the work-

related part of that condition is a question of law. DCBS v.

Muliro, 359 Or 736, 742, 380 P3d 270 (2016) (“Determining

the intended meaning of a statute is a question of law.”).

Ordinarily, under ORS 656.266(1), a claimant has the bur-

den to establish that a particular injury is compensable by

proving that the work-related injury is a “material” cause

of the disability or the need for treatment. However, ORS

656.005 provides at least two exceptions to that burden, by

defining “compensable injury” as subject to the following

limitations:

“(A) An injury or disease is not compensable as a con-

sequence of a compensable injury unless the compensable

injury is the major contributing cause of the consequential

condition.

“(B) If an otherwise compensable injury combines at

any time with a preexisting 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 contribut-

ing cause of the disability of the combined condition or the

major contributing cause of the need for treatment of the

combined condition.”

Cite as 314 Or App 185 (2021) 191

ORS 656.005(7)(a) (emphases added). In such cases, although

the burden still lies with the claimant, the ordinary material

contributing cause standard no longer applies; the claimant

must establish that the work-related injury was the major

contributing cause—a higher standard than “material”—of

either a “consequential” or “combined” condition. Brown v.

SAIF, 361 Or 241, 252, 391 P3d 773 (2017).

Claimant notes that in Brown, 361 Or at 272, the

court held that the phrase “otherwise compensable injury”

in ORS 656.005(7)(a)(B) means a “previously accepted con-

dition,” and therefore contends that since the L4-5 disc

bulge was never accepted, there was no “otherwise compen-

sable injury” which combined with her preexisting condi-

tion. She argues that, thus, the major contributing cause

statute does not apply. But Brown is not controlling in the

context of new or omitted claims, as we have here. Brown

instead involved whether a claim must have previously been

accepted in the setting of a combined condition “ceases”

denial—where a combined condition has been accepted and

then denied under ORS 656.262(6)(c). 361 Or at 251, 283.

The other cases that claimant relies on for her argument

that a combined condition claim can only exist once a con-

dition has first been accepted—Caren v. Providence Health

System Oregon, 365 Or 466, 446 P3d 67 (2019); Columbia

Forest Products v. Woolner, 177 Or App 639, 34 P3d 1203

(2001); and Croman Corp. v. Serrano, 163 Or App 136, 986

P2d 1253 (1999)—are similarly not controlling because

they do not involve new or omitted claims. Generally, the

cases in which we have inquired into the factual question

of whether or not an employer’s letter accepting or denying

a combined condition claim was procedurally sufficient in

adherence to the requirement of a previous acceptance of

the preexisting condition have only been in the context of

“ceasing,” aggravation, or other pre claim-closure modifica-

tion. See, e.g., TriMet v. Wilkinson, 257 Or App 80, 85-86,

304 P3d 46 (2013) (concluding that the employer’s denial let-

ter was procedurally invalid because the employer had not

first issued a written acceptance of a combined condition).

The case before us is more comparable to the situa-

tion in Hammond v. Liberty Northwest Ins. Corp., where the

192 Sexton v. Sky Lakes Medical Center

dispute involved “the statute’s applicability to an initial claim

for an injury that itself constitutes the combined condition,”

296 Or App 241, 245, 437 P3d 269 (2019) (emphasis added),

as well as Tektronix, Inc. v. Nazari, 117 Or App 409, 844 P2d

258 (1992), adh’d to as modified on recons, 120 Or App 590,

853 P2d 315, rev den, 318 Or 27 (1993). Though both of those

cases involved initial claims—as opposed to new or omitted

claims—their reasoning suggests that they would apply to

the latter type of claim as well. In Nazari, in concluding that

a former version of ORS 656.005(7)(a)(B) was applicable in

the context of an initial claim, we noted that “the objective

of the legislature was to adopt the major contributing cause

standard of proof with respect to any claim for benefits or

disability related to a preexisting, noncompensable condi-

tion.” 120 Or App at 594 (emphases added). Although the

statute has since been amended, the changes do not change

the outcome, and we have thus applied Nazari’s reasoning

to the current version of the statute. See Hammond, 296 Or

App at 247 (“Our interpretation of the prior version of ORS

656.005(7)(a)(B) remains persuasive under the current ver-

sion of the statute.”). In Hammond, we noted that Brown’s

analysis would not only be inapplicable in the context of an

initial claim, but moreover, requiring a previously accepted

injury would be nonsensical in such a context. Id. at 245.

The same logic applies in the case of a new or omit-

ted condition. To put it in the words of our opinion in Nazari,

requiring a previous acceptance of a preexisting condition

that the employer determined not to be compensable would

be illogical, even in the case of a new or omitted condition,

because the “employer would be required to accept a claim

for which no benefits are due.” 117 Or App at 412.

We are persuaded that the reasoning of Hammond

and Nazari controls here. We thus need not inquire into the

factual issue of employer’s acceptance, because we conclude

that, as a matter of law, employer was not procedurally

required to issue an acceptance of the preexisting condition.

Accordingly, the board did not err.

Affirmed.