Rogers v. CorVel Enterprise Comp, Inc.

116

Argued and submitted November 15, 2021; reversed and remanded

January 20; respondents’ petition for reconsideration filed February 3 and peti-

tioner’s response filed February 10, allowed by opinion March 30, 2022

See 318 Or App 641, 509 P3d 763 (2022)

In the Matter of the Compensation of

Diane M. Rogers, Claimant.

Diane M. ROGERS,

Petitioner,

v.

CORVEL ENTERPRISE COMP, INC.

and TriMet – Tri-County Metropolitan Transportation,

Respondents.

Workers’ Compensation Board

1901029; A174837

505 P3d 1073

Claimant, a bus driver for employer TriMet, contracted Influenza A after a

work exposure to the virus and filed a workers’ compensation claim for an indus-

trial injury, which employer denied. The Workers’ Compensation Board (board)

acknowledged claimant’s work exposure to the virus, but the board concluded

that claimant had not met her burden to show that her work exposure was a

material contributing cause of her illness, because claimant’s medical expert

lacked a complete medical history, as he was unaware that, during the incuba-

tion period for the virus, claimant had made a trip to a grocery store. On judicial

review, claimant contends that the board erred. Held: The Court of Appeals deter-

mined that the board had failed to explain how the expert’s lack of awareness of

claimant’s trip to the grocery store defeated the opinion’s persuasiveness under a

material contributing cause standard of proof of causation. Under that standard,

claimant was only required to prove, by a preponderance of the evidence, that

an employment-related fact of consequence was a likely cause of claimant’s ill-

ness. That shortcoming in the board’s analysis led the court to conclude that the

board’s rejection of the medical opinion was not supported by substantial reason.

The court therefore reversed and remanded the case to the board for reconsider-

ation under the correct standard.

Reversed and remanded.

Jodie Anne Phillips Polich argued the cause and filed the

briefs for petitioner. Also on the briefs was Law Offices of

Jodie Anne Phillips Polich, P.C.

Samuel P. Whalen argued the cause and filed the brief for

respondents.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and

Armstrong, Senior Judge.

ARMSTRONG, S. J.

Reversed and remanded.

Cite as 317 Or App 116 (2022) 117

ARMSTRONG S. J.

Claimant, a bus driver for employer TriMet, con-

tracted Influenza A after a work exposure to the virus.

She filed a workers’ compensation claim for an industrial

injury, which employer denied. In affirming an order of an

administrative law judge (ALJ), the Workers’ Compensation

Board (board) acknowledged claimant’s work exposure to

the flu virus but concluded that claimant had not met her

burden to show medical causation—that her work expo-

sure was a material contributing cause of her illness. On

judicial review, claimant contends that the board erred in

rejecting the opinion of her medical expert based on the

lack of a complete medical history.1 We agree with claimant

that the board erred and therefore reverse and remand for

reconsideration.

In early February 2019, which was high flu season,

despite having been vaccinated, claimant became ill with

the flu. The medical evidence is that the flu can be present

in any setting where people are present, and that masking

and handwashing reduce transmission. Employer’s policy

prohibited claimant from wearing a mask while driving a

bus and, because of the nature of her work, claimant did not

have the ability to wash her hands frequently.

Claimant testified that, in her full-time work as a

bus driver, she is regularly exposed to passengers who are

coughing and sneezing. She testified that, in the days before

she began to feel ill, and during the typical four- to six-day

incubation period for the flu, she was exposed to passengers

who were coughing and sneezing. She also testified that

she was exposed to Influenza A at work when she hugged a

coworker who was subsequently diagnosed with the illness.

Off work during that same period, claimant ran

several errands that included a regular trip to the doctor

and quick trips to a department store, a pharmacy drive-up

window, and a grocery store. When she developed a high

fever, shortness of breath, low oxygen levels, and a severe

1

The board determined that claimant’s claim should be treated as one for an

injury rather than an occupational disease. That determination is not challenged

on judicial review.

118 Rogers v. CorVel Enterprise Comp, Inc.

headache, claimant went to the emergency room and was

admitted to the hospital for one night. She was diagnosed

with Influenza A. Claimant lost 10 days of work as a result

of her illness.

Claimant filed a claim for her illness, which employer

denied. In support of her claim at the hearing, claimant pre-

sented the opinion of Dr. Cribbs, an occupational medicine

physician and claimant’s attending physician, who exam-

ined claimant after her hospitalization. Employer relied

on the opinion of Dr. Leggett, who specializes in infectious

diseases and who reviewed claimant’s medical records at

employer’s request.

Leggett stated in his report that “influenza was

widespread in the entire Portland community at the time of

the onset of [claimant’s] illness,” and that any time a person

was in a public space during that time they were exposed

to the flu. Leggett stated that, although it was possible that

claimant had contracted Influenza A at work, he could not

make that determination on a “more likely than not” basis.

Leggett offered the opinion that “[claimant] may have been

infected with influenza A either during her days off the

Wednesday or Thursday prior to the onset of her illness,

or perhaps more likely, sometime during the three days she

worked prior to the onset of her illness.” (Emphasis added.)

Cribbs was more definitive. He testified by deposi-

tion that, although flu is not distinctly an occupational risk,

there are studies showing that drivers of public transporta-

tion are at increased risk for contracting infectious diseases

like the flu because of their close contact with the public.

Cribbs, who testified that he does not see a lot of flu in his

occupational medicine practice, testified that, with a proper

epidemiological investigation, it is possible to determine

where someone contracted the flu. In this case, because no

epidemiological study had been done, he testified that he

could not be certain where claimant acquired her illness,

so his purpose was to determine the “likely” cause of claim-

ant’s flu.

Cribbs explained that he relied on statistical prob-

ability for determining the likely cause of claimant’s flu. He

explained that his method was to “look at all of the other

Cite as 317 Or App 116 (2022) 119

points of exposure and rank them according to risk.” Cribbs

was aware of claimant’s possible off-work exposures to flu

at the department store and doctor’s office but he was not

aware of (or did not specifically address) claimant’s trip

to the grocery store. In his view, there was nothing about

claimant’s off-work activities that put her at greater risk

than her exposure as a bus driver. Based on the informa-

tion that he had, Cribbs believed that claimant’s exposure

at work was more significant than her off-work exposures.

Cribbs concurred in a statement by claimant’s attorney that

“[claimant’s] exposure as a driver * * * was much more likely

to be the source of her Influenza A than her exposure as an

ordinary Oregonian.” And based on the high presence of flu

virus circulating in Portland during the time that claimant

became sick and claimant’s increased exposure to illness

in her employment, Cribbs believed that it was more likely

than not that claimant’s illness had been caused by work

exposure. He opined that, “given the sum total of her life-

style, her typical social interactions and the specific inter-

actions of the preceding week, her workplace exposure was

the highest risk exposure during that period.” During his

deposition testimony, Cribbs agreed with claimant’s coun-

sel’s statement that “it was more likely than not, based on

the totality of the information available to you, that [claim-

ant] was exposed to influenza at work.”

In its order upholding employer’s denial, the board

acknowledged claimant’s potential exposure to flu at work

and the applicability of the material contributing cause

standard of proof in the occupational injury context. The

board determined that, because of multiple potential causes,

the question of medical causation was a complex issue that

required expert medical evidence. The board explained that

it rejected Leggett’s opinion of medical causation because

Leggett had not expressed his opinion in terms of medical

probability. The board also rejected Cribbs’s opinion, rea-

soning that it was based on an incomplete history, because

Cribbs had not been aware of claimant’s trip to the grocery

store in the days before she became ill. Having rejected both

medical opinions, the board concluded that claimant had

not met her burden of proof under ORS 656.266(1) to show

120 Rogers v. CorVel Enterprise Comp, Inc.

that her exposure to flu at work was likely a material con-

tributing cause of her illness.

On judicial review, claimant contends that the

board’s order is not supported by substantial evidence or

substantial reason.

To establish the compensability of her illness as an

injury, claimant was required to prove both legal and med-

ical causation by a preponderance of the evidence. Coday v.

Willamette Tug & Barge, 250 Or 39, 440 P2d 224 (1968);

ORS 656.266(1).2 The only issue in dispute on judicial review

is medical causation—whether claimant has established, by

a preponderance of the evidence, that her exposure to flu

at work was a material contributing cause of her illness.

See Schliess v. SAIF Corp., 354 Or 637, 643, 317 P3d 244

(2013) (“This court has construed the phrase ‘arising out of’

to mean that a workplace injury must be a material contrib-

uting cause of disability or the need for medical treatment in

order to be compensable.”). This case presents a unique vari-

ation on that standard, because both doctors explained that

it is not possible to determine with certainty where claim-

ant “caught” the flu. The compensability of the claim thus

depends on evidence that it was more likely than not that

claimant’s exposure at work was a likely material cause of

her illness.

Cribbs and Leggett agreed that any time claim-

ant was in a public place she was potentially exposed to

the flu, either on the job or off the job. Claimant contends

that the board was mistaken in rejecting Cribbs’s opinion

of causation based on his lack of knowledge of one potential

exposure at the grocery store. She contends that Cribbs’s

opinion did not depend on his knowledge of that specific

trip, which was not necessary to his evaluation of material

contributing cause and which, unlike the major contribut-

ing cause standard applicable in the occupational disease

claim, does not require a weighing of every possible off-

work exposure against the work exposure. Here, claimant

contends, Cribbs formed his opinion based on his general

2

ORS 656.266(1) provides, in part:

“The burden of proving that an injury or occupational disease is compen-

sable * * * is upon the worker.”

Cite as 317 Or App 116 (2022) 121

understanding of the types of exposures claimant had off

the job when compared with her on-the-job exposure and

concluded that it was likely that claimant’s work was the

cause.

Claimant contends that, in fact, even in the absence

of medical evidence, evidence of her having been exposed

on a job is “some affirmative evidence” from which a fact-

finder could find a work connection. See Seeley v. Sisters of

Providence, 179 Or App 723, 41 P3d 1093 (2002) (explaining

that a worker meets the burden of proof required by ORS

656.266(1) in the occupational disease context by producing

“some affirmative evidence” from which the factfinder can

make a work connection). Thus, claimant contends, contrary

to the board’s conclusion, even in the absence of persuasive

medical evidence, her evidence was not legally insufficient

under ORS 656.266.

We agree with the board that, because of the com-

plexity of the issue of determining the medical cause of a

viral infection when there are multiple potential causes,

claimant was required to establish medical causation by a

preponderance of the evidence through expert medical evi-

dence, stated in terms of “a reasonable medical probabil-

ity.” See SAIF v. Gaffke, 152 Or App 367, 371, 954 P2d 179

(1998) (expert medical opinion is required when the ques-

tion of causation is a complex one); see also Liberty Metal

Fabricators v. Lynch Co., 295 Or App 809, 813, 435 P3d 810

(2019), modified on recons, 302 Or App 110, 456 P3d 691,

rev den, 366 Or 731 (2020) (noting “reasonable medical prob-

ability” describes the level of proof required to establish

medical causation by a preponderance of the evidence).

The analysis of this case is further complicated by

the fact that, although the claim was filed as one for an injury,

employer has contended that the claim should be analyzed

as one for an occupational disease. Thus, as summarized

above, the medical opinions of both Cribbs and Leggett were

stated in terms of the “major contributing cause” standard

of proof, ORS 656.802(2)(a) (“The worker must prove that

employment conditions were the major contributing cause

of the disease.”), which requires a weighing of the relative

contribution of work-related versus non-work-related causes

122 Rogers v. CorVel Enterprise Comp, Inc.

to determine “the cause that contributes more than all other

causes combined.” Lowells v. SAIF, 285 Or App 161, 164,

396 P3d 241 (2017); Cummings v. SAIF, 197 Or App 312,

318, 105 P3d 875 (2005) (a “major contributing cause” is

one that is the primary cause of the need for treatment or

disability). But because the ALJ and the board determined

that the claim should be analyzed as an injury claim, the

“material contributing cause” standard of proof is applica-

ble. Under that standard, and claimant’s burden to estab-

lish her claim by a preponderance of the evidence, claimant

was required to establish only that it was more likely than

not that her work-place exposure materially contributed to

her disability or need for treatment. See ORS 656.005(7)(a);

ORS 656.266(1); Albany Gen. Hosp. v. Gasperino, 113 Or App

411, 415, 833 P2d 1292 (1992). Under the “material contrib-

uting cause” standard, a work injury—or, in this case, an

illness—is compensable if the employment is a “fact of conse-

quence” regarding the claimant’s condition. Mize v. Comcast

Corp – AT & T Broadband, 208 Or App 563, 570, 145 P3d 315

(2006); see State v. Johanesen, 319 Or 128, 135, 873 P2d 1065

(1994) (a “material” fact is a fact of consequence to the deter-

mination of an action).

It is clear from Cribbs’s opinion, considered in its

entirety, as expressed variously in the form of deposition tes-

timony and in writing, that Cribbs regarded claimant’s work

environment, where she was frequently exposed to passen-

gers who were coughing or sneezing, as posing a greater risk

of exposure to flu than claimant’s brief potential exposures

in her off-work environment. On this record, Cribbs’s opin-

ion supports the conclusion that claimant’s exposure at work

was a “fact of consequence” that could satisfy her burden of

proof under a material contributing cause standard, despite

his lack of awareness of claimant’s trip to the grocery store.

In rejecting Cribbs’s opinion that claimant’s flu was likely

caused by exposure at work, the board focused on Cribbs’s

failure to consider claimant’s trip to the grocery store. That

omission would certainly be significant if the major contrib-

uting cause standard of proof, under which Cribbs initially

evaluated the case and which required a weighing of all

causes to determine the major cause, were applicable. But

the board did not explain how Cribbs’s lack of awareness of

Cite as 317 Or App 116 (2022) 123

claimant’s trip to the grocery store defeated the opinion’s

persuasiveness under a material contributing cause stan-

dard of proof of causation, which required only proof that it

was more likely than not that an employment-related fact of

consequence was a cause of claimant’s illness. That short-

coming in the board’s analysis leads us to conclude that the

board’s rejection of Cribbs’s opinion is not supported by sub-

stantial reason. In light of the narrow question presented to

us on judicial review, we conclude that the board erred, and

we therefore remand the case to the board for reconsider-

ation under the correct standard.

Reversed and remanded.