# Rogers v. CorVel Enterprise Comp, Inc.

> Court of Appeals of Oregon · January 20, 2022 · 317 Or. App. 116

URL: https://www.frixlaw.com/law-library/cases/10601498

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** January 20, 2022
- **Citations:** 317 Or. App. 116; 505 P.3d 1073
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Armstrong, S. J.
- **Cited by:** 1 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10601498. Public record. Not legal advice.