Interiano v. SAIF

588

Argued and submitted November 6, 2020, reversed and remanded

November 10, 2021

In the Matter of the Compensation of

Margarett Y. Interiano, Claimant.

Margarett Y. INTERIANO,

Petitioner,

v.

SAIF CORPORATION

and OHSU - Oregon Health & Science University,

Respondents.

Workers’ Compensation Board

1801113, 1502779, 1403713, 1505067;

A170274

502 P3d 224

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

Compensation Board that concluded that her claim for a 2014 low-back injury

was not compensable under ORS 656.005(7)(a)(B), the “combined condition” stat-

ute for injury claims. Claimant asserts that the board erred in determining that

her preexisting conditions and the symptoms of those conditions brought on by

the work injury “represented two medical problems” that constituted a legally

cognizable combined condition. Held: Because a preexisting condition and its

symptoms are not separate conditions, the board erred in determining that

claimant had a combined condition within the meaning of ORS 656.005(7)(a)(B).

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.

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

Powers, Judge.

POWERS, J.

Reversed and remanded.

Cite as 315 Or App 588 (2021) 589

POWERS, J.

Claimant petitions for judicial review of a final

order of the Workers’ Compensation Board that concluded

that her claim for a 2014 low-back injury was not compen-

sable under ORS 656.005(7)(a)(B), the “combined condition”

statute for injury claims. In her first assignment of error,

claimant asserts that the board erred in determining that

claimant suffered from a “combined condition.” In her second

assignment of error, claimant asserts that, even assuming

that the board correctly determined that a combined condi-

tion existed, the board erred in concluding that claimant’s

“otherwise compensable injury” was not the major contrib-

uting cause of claimant’s disability or need for treatment.

We agree that the board erred in determining that claim-

ant was suffering from a combined condition as defined

in ORS 656.005(7)(a)(B). Given that conclusion, we do not

reach claimant’s second assignment of error. Accordingly,

we reverse and remand.

The facts are not in dispute. Claimant worked as

a Public Services Representative/Parking Patroller for

employer OHSU—Oregon Health & Science University. Her

job duties involved keeping the roads clear, placing signage,

monitoring pay stations, loading storage units, building steel

shelving, loading delineators, and other various activities

involving lifting between 40 and 80 pounds. In November

2013, claimant helped move a 250-pound pay station from

a storage unit and injured her back. Claimant sought treat-

ment following the incident, and SAIF accepted a claim on

behalf of OHSU for a disabling left lumbar strain.

In January 2014, claimant established treatment

with Dr. Takacs, who diagnosed claimant with a left lum-

bar strain, with a possible herniated disc. A lumbar spine

MRI scan also revealed minor degenerative changes at the

L4-5 level, with a small focal protrusion, possibly affecting

the fifth root. In April 2014, claimant submitted a written

claim to expand the scope of acceptance of her November

2013 claim to include left L5 radiculopathy and a herniated

disc at L4-5. At SAIF’s request, Dr. Rosenbaum examined

claimant and diagnosed her with preexisting lumbar spon-

dylosis and a left lumbar strain secondary to the November

590 Interiano v. SAIF

2013 injury. Based on his review of the MRI, Rosenbaum

opined that claimant did not have nerve root compression,

and that the degree of disc bulging at L4-5 was “inconse-

quential and incidental” and not representative of a herni-

ated disc at the L4-5 level. SAIF denied claimant’s new or

omitted condition claim for L5 radiculopathy and an L4-5

herniated disc. After a hearing, SAIF issued a notice of clo-

sure on the November 2013 claim for a lumbar strain and

awarded no permanent disability benefits. That claim is not

before us.

In December 2014, claimant had to perform increased

work activity beyond her lifting restrictions due to inclem-

ent weather. The increased work activities caused claimant

to seek emergency medical treatment for low back pain.

Claimant was diagnosed with a lumbar strain. Claimant

returned to Takacs, who opined that 10 percent of claim-

ant’s discomfort was related to preexisting spondylosis and

90 percent of her current symptomatology was related to

a herniated disc at L4-5. Takacs also assessed progres-

sively worsening left lower extremity radiculopathy and a

herniated disc at L5-S1 “related to work-related activities.”

Claimant filed a new claim for a low-back injury occurring

on or about December 1, 2014.

Rosenbaum did not reexamine claimant, but reviewed

claimant’s MRI and agreed that she had pathology at L3-4,

L4-5, and L5-S1. He further opined that the spondylosis at

L4-5 and L5-S1 was a preexisting condition. Rosenbaum

characterized the condition as arthritic and attributed it to

claimant’s genetics and age.

At SAIF’s request, claimant was also examined by

Dr. Hammel, who agreed with Rosenbaum that claimant’s

L4-5 and L5-S1 pathologies, including L5 radiculopathy,

involved preexisting spondylosis. Hammel concurred in a

letter prepared by SAIF’s counsel that claimant’s “injury

event in December 2014” was not the major cause of her need

for treatment for the lumbar pathology, and, to the extent

claimant required treatment after the December 2014 activ-

ity, “it would have been as a part of a combination of the

effects of the injurious exposure on or about December 1,

2014[,] and [claimant’s] preexisting, diagnosed, symptomatic

Cite as 315 Or App 588 (2021) 591

and arthritic conditions.” Hammel and Rosenbaum agreed

that claimant’s preexisting arthritic condition was the

major contributing cause of the need for treatment after the

December 2014 incident.

In contrast, Takacs concluded that the December

2014 work activity had caused a lumbar strain and had also

injured the L5 nerve root, causing claimant’s L5 radiculopa-

thy to become constant.

An administrative law judge (ALJ) upheld SAIF’s

denial. The ALJ noted that SAIF had conceded that claim-

ant met her “burden to prove that her December 2014 injury

was at least a material contributing cause of her need for

treatment and disability.” Therefore, the issue was whether

SAIF had “met its burden to prove that claimant’s December

2014 injury combined with a preexisting condition, and that

the injury was never the major contributing cause of her need

for treatment or disability.” Relying primarily on the opin-

ions of Rosenbaum and Hammel, which the ALJ found to be

more persuasive, the ALJ concluded that claimant’s need for

treatment and disability were caused, in major part, by her

preexisting arthritic condition and not the December 2014

injury.

The board adopted and affirmed the ALJ’s order

with supplementation. The board confirmed that the “opin-

ions of Drs. Rosenbaum and Hammel persuasively estab-

lish the presence of a ‘combined condition’; i.e., ‘two medi-

cal problems simultaneously.’ ” Specifically, the board found

that claimant’s combined condition “consisted of two medi-

cal problems (i.e., her preexisting spondylosis arthritic con-

dition, and the low back/radicular symptoms caused by her

lifting activities at work).” The board further concluded that

SAIF had established that claimant’s December 2014 work

injury was not the major contributing cause of the need for

treatment of the combined condition. Claimant timely peti-

tioned this court for judicial review.

On review, claimant contends that the board erred

in concluding that her preexisting conditions and the symp-

toms of those conditions brought on by the work injury “rep-

resented two medical problems” that constituted a legally

592 Interiano v. SAIF

cognizable combined condition. Claimant asserts that “courts

have never employed a ‘two medical problem’ legal analysis

to establish the existence of a combined condition,” and that

Brown v. SAIF, 361 Or 241, 391 P3d 773 (2017), “unequiv-

ocally establishes that a specific medical condition, as

that term has been defined by the courts, must combine

with a separate and distinct legally cognizable preexisting

condition.”

SAIF remonstrates that, in the context of an initial

claim, ORS 656.005(7)(a)(B) does not require that a medi-

cal condition be “separate and distinct” from the preexisting

condition. SAIF further contends that Brown is distinguish-

able, because it involved a “ceases denial” issued after SAIF

had given notice of acceptance of a specific medical condition,

which differs from the initial-claim context, where “nothing

has yet been ‘accepted’ and ‘no particular medical condition’

has been specified as ‘compensable.’ ” Alternatively, SAIF

contends that the board’s order should be affirmed as “right

for the wrong reason,” because claimant failed to carry her

burden of proving an “otherwise compensable injury” under

ORS 656.266(1) and (2)(a).1

We review the board’s order for substantial evi-

dence and legal error. ORS 183.482(8)(a), (c). As explained

below, we conclude that the board erred in determining that

claimant’s preexisting condition—spondylosis—combined

with the symptoms of that condition brought on by claim-

ant’s December 2014 work activities to result in a combined

condition.

1

ORS 656.266 provides, in part:

“(1) The burden of proving that an injury or occupational disease is com-

pensable and of proving the nature and extent of any disability resulting

therefrom is upon the worker. The worker cannot carry the burden of proving

that an injury or occupational disease is compensable merely by disproving

other possible explanations of how the injury or disease occurred.

“(2) Notwithstanding subsection (1) of this section, for 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 315 Or App 588 (2021) 593

To establish a compensable injury, a claimant must

prove (1) that the claimant suffered an injury in the course

of employment, and (2) that that injury either resulted in

disability or death or was at least severe enough to require

medical services. Horizon Air Industries, Inc. v. Davis-

Warren, 266 Or App 388, 394, 337 P3d 959 (2014); ORS

656.005(7)(a) (defining “compensable injury”). If a compen-

sable injury combines with a preexisting condition to cause

or prolong disability or a need for treatment, that gives rise

to a combined condition.

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

“If an otherwise compensable injury combines at any

time with a preexisting condition to cause or prolong dis-

ability 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.”

Thus, a combined condition is “compensable only if the

major contributing cause—not just the material cause—of

the resulting combined condition is the compensable injury.”

Brown, 361 Or at 251 (emphasis omitted); see also Hopkins

v. SAIF, 349 Or 348, 351, 245 P3d 90 (2010) (explaining that

a “combined condition is compensable only if the compen-

sable injury is the major contributing cause of the disabil-

ity or need for treatment”). The employer bears the burden

of proving that a combined condition is not compensable by

establishing that a “worker has a preexisting condition and

that the compensable injury is not the major contributing

cause of the disability or need for treatment.” Hopkins, 349

Or at 352 (explaining the operation of ORS 656.266(2)(a)).

In Carrillo v. SAIF, 310 Or App 8, 12, 484 P3d 398,

rev den, 368 Or 560 (2021), we recently addressed “whether

a combined condition can derive from a preexisting condi-

tion and its symptoms.” In that case, the claimant filed an

injury claim based on symptoms that he had experienced

in his left shoulder after a day of heavy lifting at work.

Id. at 9. SAIF denied the claim, asserting that the work

injury had combined with preexisting conditions and that

594 Interiano v. SAIF

the work injury was not the major contributing cause of the

combined condition. Id. The claimant requested a hearing

and argued before the board that a combined condition con-

sisted of two separate medical conditions that combined and

that a symptomatic flareup of a preexisting condition can-

not combine with the preexisting condition itself. Id. at 11.

The board determined that the “claimant’s work activities

had precipitated symptoms of a preexisting condition and

that those symptoms had ‘combined’ with the preexisting

condition itself but had not caused a new condition.” Id. at

10. Although the board determined that 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.” Id. at 11 (emphasis omitted).

On review, we disagreed with the board’s decision.

We explained that, as noted in Brown, the “term ‘combined

condition’ suggests two separate conditions that combine.”

Carrillo, 310 Or App at 11 (emphasis omitted). Therefore,

because “[a] preexisting condition and its symptoms are

not separate conditions,” we concluded that the board erred

in determining that the symptoms of the claimant’s pre-

existing shoulder condition combined with the preexisting

condition itself to give rise to a combined condition claim.

Id. at 12.

We reach the same conclusion in this case. In deter-

mining that claimant had a combined condition, the board

did not identify two separate conditions; rather, the board

concluded that claimant’s preexisting spondylosis arthritic

condition combined with the symptoms of that condition

when she was lifting at work in December 2014. The board

relied on the opinions of Rosenbaum and Hammel to con-

clude that claimant’s combined condition “consisted of two

medical problems (i.e., her preexisting spondylosis arthritic

condition, and the low back/radicular symptoms caused

by her lifting activities at work).” Similarly, the board con-

sidered “Hammel’s detailed description of claimant’s pre-

existing conditions with L5 radiculopathy, and the need for

treatment of those conditions caused by the work injury,

Cite as 315 Or App 588 (2021) 595

to represent two medical problems that constitute a ‘com-

bined condition.’ ” The medical opinions of Rosenbaum and

Hammel, however, do not describe the existence of two sep-

arate conditions. Because a preexisting condition and its

symptoms are not separate conditions, the board erred in

determining that claimant had a combined condition within

the meaning of ORS 656.005(7)(a)(B).2

Reversed and remanded.

2

As noted earlier, SAIF argues that, even if we agree with claimant’s argu-

ments, we should affirm the board’s order under the “right for the wrong reason”

doctrine because claimant failed to carry her burden of proving an “otherwise

compensable injury.” We reject that argument without discussion.