Gibson v. ESIS

703

Argued and submitted November 30, 2021, reversed and remanded

January 5, 2022

In the Matter of the Compensation of

Terry D. Gibson, Claimant.

Terry D. GIBSON,

Petitioner,

v.

ESIS

and Georgia Pacific Consumer

Product - Georgia Pacific,

Respondents.

Workers’ Compensation Board

1904433, 1901856, 1901393, 1805238;

A174561

504 P3d 1270

Claimant petitions for judicial review of an order of the Workers’ Compensa-

tion Board (board) upholding employer’s denial of his new or omitted condition

claim. In upholding employer’s denial, the board employed a combined-condition

analysis. On review, claimant asserts that the board applied the wrong legal

standard when determining that he had a legally cognizable combined condi-

tion. Alternatively, he asserts that the board’s determination that there was a

legally cognizable combined condition is not supported by substantial evidence or

substantial reason. Held: The board applied the wrong legal standard by failing

to acknowledge and apply the limited definition of a medical condition for the

combined-condition analysis. Furthermore, if and to the extent it applied the

correct standard, the board’s order was not supported by substantial reason.

Reversed and remanded.

Jodi Anne Phillips Polich argued the cause for petitioner.

Also on the briefs was the Law Offices of Jodie Anne Phillips

Polich, P.C.

Rebecca A. Watkins argued the cause for respondents.

Also on the brief were David Levine and SBH Legal.

Before Kamins, Presiding Judge, and Lagesen, Chief Judge,

and Landau, Senior Judge.

LAGESEN, C. J.

Reversed and remanded.

704 Gibson v. ESIS

LAGESEN, C. J.

Claimant petitions for judicial review of an order

of the Workers’ Compensation Board (board) upholding

employer’s denial of his new or omitted condition claim for

osteoarthritis. In upholding employer’s denial, the board

employed a combined condition analysis. On review, claim-

ant asserts that the board applied the wrong legal standard

when determining that claimant had a legally cognizable

combined condition. Alternatively, claimant asserts that the

board’s determination that there was a legally cognizable

combined condition is not supported by substantial evidence

or substantial reason. We conclude that the board applied

the wrong legal standard and, if and to the extent that it

applied the correct standard, its order is not supported by

substantial reason. Accordingly, we reverse the board’s

order and remand.

Except as noted the facts are not disputed. Claimant

slipped and fell at work, hurting his knee. Employer accepted

a “knee strain condition, classified as non-disabling.” Later,

claimant requested that employer accept osteoarthritis and

acute bone marrow lesions as new or omitted conditions.

Employer denied both conditions, and claimant requested a

hearing before an administrative law judge (ALJ); the ALJ

affirmed the denials. The ALJ determined that the osteo-

arthritis was a preexisting condition not compensably

related to the work injury. The ALJ further determined that

the work injury combined with the preexisting osteoarthri-

tis and that the noncompensable osteoarthritis is the major

contributing cause of claimant’s disability or need for treat-

ment related to the combined condition, including the rec-

ommended knee replacement surgery. Accordingly, the ALJ

found “insufficient causal relationship between the accepted

injury and the proposed medical procedure.” With regard

to the bone marrow lesions, the ALJ determined that there

was insufficient evidence to establish that they existed, and,

if they existed, no evidence that they were caused by the

work incident.

Claimant appealed to the board, which adopted

and affirmed the ALJ’s order, supplementing the reasoning.

The board explained that the work injury caused claimant’s

Cite as 316 Or App 703 (2022) 705

osteoarthritic knee to become symptomatic, resulting in a

combined condition of claimant’s preexisting osteoarthritis

and the symptoms triggered by the work injury:

“Here, we consider Dr. Baldwin’s description of claim-

ant’s preexisting left knee tri-compartmental osteoarthri-

tis and the onset of symptoms due to the April 2018 work

injury to represent two medical problems that constitute

a ‘combined condition.’ * * * Dr. Baldwin explained that

claimant’s work injury, which hyperextended his knee,

caused the rough surfaces of the underlying osteoarthritis

to ‘pop over one another’ resulting in left knee pain, but

that at all times the major contributing cause of the need

for treatment was claimant’s preexisting left knee osteo-

arthritis and not the work injury. As such, Dr. Baldwin’s

opinion supports the existence of a combined condition (i.e.,

the work-related knee pain combined with the underlying

preexisting osteoarthritis condition).

“Further, the existence of a combined condition is also

supported by the opinion of claimant’s treating physician,

Dr. Kretzler. He described the April 2018 work injury as

‘exacerbat[ing]’ claimant’s preexisting tricompartmental

osteoarthritis, and causing claimant’s left knee to be symp-

tomatic. That opinion, also, is consistent with the existence

of a combined condition consisting of ‘two medical problems’

existing simultaneously (i.e., the preexisting osteoarthritis

and the work-related exacerbation).”

(Internal citations omitted.) The board concluded further, as

had the ALJ, that the major contributing cause of the need

for treatment of the combined condition that it had identified

was the preexisting osteoarthritis, such that the treatment

of the combined condition was not compensable. Claimant

petitioned for judicial review.

On review, employer and claimant agree that the

osteoarthritis is the major contributing cause of claimant’s

need for a knee replacement surgery but dispute whether

that condition, and thus the surgery, are compensable. As

we understand his arguments on review, claimant dis-

putes the board’s determination that his osteoarthritis is

a noncompensable preexisting condition and that his work-

related injury combined with the preexisting osteoarthritis

to create a combined condition. He asserts that his pain,

706 Gibson v. ESIS

disability, and need for treatment are all symptoms of his

osteoarthritis that were brought on by the work incident,

that his osteoarthritis is the only cognizable medical con-

dition, and that the osteoarthritis should have been found

compensable based on the role the work injury played in

causing his osteoarthritis to become symptomatic. Insofar

as the board found that his symptoms combined with his

preexisting osteoarthritis, claimant contends that the board

misapplied ORS 656.005(7)(a)(B), the statute concerning com-

bined conditions. Employer argues to the contrary that the

board was correct. In employer’s view, the accepted knee

strain that resulted from the work incident was a new medi-

cal condition that combined with and exacerbated claimant’s

preexisting osteoarthritis. Alternatively, employer argues that

the combined condition can be constituted by the preexisting

condition and its worsening.

To the extent claimant’s arguments challenge the

board’s interpretation of the statute, our review is to deter-

mine whether the board “erroneously interpreted a provi-

sion of law.” ORS 183.482(8)(a). To the extent that claimant

asserts that the board’s order is not supported by substantial

reason, we review to determine “whether the order supplies

the necessary reasoning” to connect the board’s findings of

fact with its conclusions of law. United Academics of OSU v.

OSU, 315 Or App 348, 356, 502 P3d 254 (2021).

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.”

As we—and the Supreme Court—have explained,

“the term ‘combined condition’ [in ORS 656.005(7)(a)(B)]

suggests two separate conditions that combine.” Carrillo

v. SAIF, 310 Or App 8, 11, 484 P3d 398, rev den, 368 Or

560 (2021) (citing Brown v. SAIF, 361 Or 241, 255-56, 391

P3d 773 (2017); ORS 656.005(7)(a)(B); internal quotation

Cite as 316 Or App 703 (2022) 707

marks omitted; emphasis in original). Said another way,

“[a] combined condition occurs when a new injury combines

with an old injury or pre-existing condition to cause or pro-

long either disability or a need for treatment.” Id.

For purposes of this analysis, only some things

count as “conditions” that can result in a legally cognizable

combined condition. In Young v. Hermiston Good Samaritan,

223 Or App 99, 107, 194 P3d 857 (2008), for example, we

held that symptoms of a condition, on their own and distinct

from their underlying medical condition, cannot amount to

a compensable condition. See also Interiano v. SAIF, 315 Or

App 588, 593-94, 502 P3d 224 (2021) (a preexisting condition

and its symptoms are not separate conditions and cannot

combine). Similarly, we also have held that the worsening of

a preexisting condition cannot be a separate condition from

(and thus cannot combine with) the underlying preexisting

condition to establish a legally cognizable combined condi-

tion. Carrillo, 310 Or App at 11-12 (collecting cases).

That line of cases establishes that two distinct con-

ditions are required for a legally cognizable combined con-

dition. Consequently, the board errs if it determines that

the symptoms of a preexisting condition, the worsening of a

preexisting condition, or an incident itself, as distinct from

a new medical condition, combined with the preexisting

condition to give rise to a combined condition within the

meaning of ORS 656.005(7)(a)(B). Carrillo, 310 Or App at

11; Interiano, 315 Or App at 593-94; Pedro v. SAIF, 313 Or

App 34, 38-39, 495 P3d 183 (2021).

Resisting this line of authority, employer argues

that “nothing prevents the two merging components, new

and old, from being a condition and a worsened condition.”

We do not read our case law to allow that approach. Even

if it does, though, the board determined that the evidence

was insufficient to “establish that claimant has sustained

a pathological worsening of his preexisting osteoarthritis

condition.” Employer has not disputed that factual finding.

Further, to the extent employer may be relying on ORS

656.225 to support its position, that statute is not relevant

to a combined-condition analysis, which is what the board

applied here to deny compensability. That statute does not

708 Gibson v. ESIS

address combined conditions but, instead, makes compensa-

ble treatment “solely directed to a worker’s preexisting con-

dition” if a work event “constitute[s] the major contributing

cause of a pathological worsening of the preexisting condi-

tion.” See Arms v. SAIF, 268 Or App 761, 770-71, 343 P3d

659 (2015). Employer also cites ORS 656.802(2)(b), which

addresses combined conditions in the context of occupational

diseases, but that statute is also irrelevant to the question

before us because, in adopting the ALJ’s findings, the board

rejected employer’s contention that claimant’s claim should

be analyzed as an occupational disease, and employer has

not cross-assigned error to that determination. Although

employer’s arguments raise questions about the ultimate

compensability of claimant’s exacerbated osteoarthritis,

they do not lend support for the board’s handling of the

combined-condition issue in this case, which does not track

our case law.

In the order at issue, the board correctly articulated

the general requirements for a combined condition but failed

to acknowledge and apply the limited definition of a medi-

cal condition for the combined-condition analysis. The ALJ

referred only to claimant’s “April 9, 2018, injury” as the con-

dition that combined with his preexisting osteoarthritis to

create a combined condition but did not identify a particular

medical condition. See Pedro, 313 Or App at 38 (explaining

that a combined condition involves the combining of two

medical conditions). The board attempted to clarify what

the second condition was, at various points characterizing

it as (1) “the onset of symptoms due” to the work injury, (2)

the thing “which hyperextended his knee, caus[ing] the

rough surfaces of the underlying osteoarthritis to ‘pop over

one another,’ ” (3) “the work-related knee pain,” and (4) “the

work-related exacerbation.”

As discussed above, none of those characterizations

amount to a separate medical condition which could have

combined with the preexisting osteoarthritis. Symptoms of

a preexisting condition triggered by a workplace incident

cannot constitute a medical condition separate from the

preexisting condition. Interiano, 315 Or App at 594. The

board does not identify hyperextension as an injury, and the

Cite as 316 Or App 703 (2022) 709

medical evidence does not allow for the conclusion that a

hyperextension is a distinct medical condition, as distinct

from the process that caused claimant’s knee pain. Incidents

are not separate medical conditions. Brown, 361 Or at

255-71. Exacerbation of a preexisting condition and wors-

ening of a preexisting condition also are not separate med-

ical conditions. Carrillo, 310 Or App at 12. As a result, to

the extent that the board determined that claimant had a

legally cognizable combined condition based on its findings

that claimant’s symptoms combined with the osteoarthritis,

that the work incident exacerbated claimant’s osteoarthri-

tis, or that the hyperextension of claimant’s knee combined

with the osteoarthritis, the order reflects that the board

applied an incorrect legal standard.

As for the board’s finding that claimant’s work-

related knee pain, caused by his fall at work, in combina-

tion with the osteoarthritis resulted in a legally cogniza-

ble combined condition, we allow for the possibility that the

work-related knee pain could constitute a separate medical

condition, or correspond to one, as distinct from the symp-

toms of claimant’s preexisting osteoarthritis. To the extent

the board reached the conclusion that the knee pain was a

separate medical condition, however, its order does not sup-

ply the reasoning for the conclusion that the knee pain is a

separate medical condition as distinct from symptoms of a

preexisting condition. Furthermore, to the extent the board

reached the conclusion that the knee pain combined with

the osteoarthritis, its order does not supply the reasoning for

that conclusion, i.e., how they combined. Pedro, 313 Or App

at 39-40 (holding that the record did not provide evidence on

how the new injury combined with the preexisting arthritis,

precluding a finding of a combined condition). That lack of

reasoning renders the correctness of those determinations

insufficiently reviewable. For that reason, to the extent the

board’s order rests on a determination that the knee pain

and the osteoarthritis resulted in a legally cognizable com-

bined condition, it is not supported by substantial reason.

United Academics of OSU, 315 Or App at 355-56 (“[W]hether

an agency’s ultimate conclusions from its findings of fact

are supported by substantial reason turns on whether the

agency’s order supplies a rational connection between the

710 Gibson v. ESIS

facts and the legal conclusions it draws from them such that

the conclusions are sufficiently reviewable by an appellate

court.” (Internal quotation omitted.)).

Reversed and remanded.