The opinion
641
On respondents’ petition for reconsideration filed February 3, and petitioner’s
response filed February 10; reconsideration allowed, opinion (317 Or App 116,
505 P3d 1073) modified and adhered to as modified March 30, 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
509 P3d 763
Employer TriMet filed a petition for reconsideration, contending that the
Court of Appeals made a misstatement of fact and erred in its analysis con-
cerning the standard of proof of medical causation on an initial injury claim.
Held: The Court of Appeals allowed reconsideration to address employer’s conten-
tions. The court rejected employer’s contention that the court had made a factual
error in stating that the board had found that claimant had had an exposure
to Influenza A at work. The medical evidence was that, during flu season, the
Influenza A virus was present in all public places where humans were present.
In adopting the administrative law judge’s findings, the board found, “There is
no real question that claimant engaged in potentially causative work activities.”
The court concluded that there cannot be a plausible contention that claimant
was not exposed to Influenza A at work. The court also clarified its statement
of the standard of proof of medical causation in an injury claim, agreeing with
employer that, under the material contributing cause standard of proof, an injury
claim is compensable if the work exposure is a substantial cause that is more
than a minimal cause.
Reconsideration allowed; opinion modified and adhered to as modified.
Rebecca A. Watkins, David White, and SBH Legal for
petition.
Jodie Anne Phillips Polich and Law Office of Jodie Ann
Phillips Polich, P. C., for response.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
642 Rogers v. CorVel Enterprise Comp, Inc.
ARMSTRONG, S. J.
Reconsideration allowed; opinion modified and adhered
to as modified.
Cite as 318 Or App 641 (2022) 643
ARMSTRONG, S. J.
In a petition for reconsideration, employer TriMet
contends that we made a misstatement of fact and that we
reversed the Workers’ Compensation Board’s (board) order
based on an incorrect definition of “material” for purposes of
the “material contributing cause” standard of proof in deter-
mining the compensability of claimant’s Influenza A infec-
tion. We allow reconsideration for the purpose of clarifying
our analysis concerning the standard of proof of medical
causation on an initial injury claim.
It is undisputed that claimant’s claim for an
Influenza A infection is correctly characterized as an injury
claim and that the material contributing cause standard of
proof applies.
Employer asserts that we made a factual error in
stating that the board had found that claimant had had an
exposure to Influenza A at work. We reject the contention.
The medical evidence was that, during the flu season, the
Influenza A virus was present in all public places where
humans were present. The administrative law judge (ALJ)
found, “There is no real question that claimant engaged in
potentially causative work activities.” The board adopted
the ALJ’s findings. There cannot be a plausible contention
that claimant was not exposed to Influenza A at work.
Employer contends that our opinion incorrectly relied
on Mize v. Comcast Corp–AT & T Broadband, 208 Or App
563, 145 P3d 315 (2006), and incorrectly stated that, under
the material contributing cause standard of proof, an injury
claim is compensable if the work exposure is a “fact of conse-
quence” in the causation of the claimant’s condition. Rather,
employer contends, a cause is “material” if it is a “substan-
tial” cause that is more than minimal.
In Mize, we addressed the compensability of medical
services for a compensable injury under ORS 656.245(1)(a),
which provides that, “[f]or every compensable injury, the
insurer or the self-insured employer shall cause to be pro-
vided medical services for conditions caused in material part
by the injury.” (Emphasis added.) In that case, we had before
us the meaning of the phrase “in material part,” as used in
644 Rogers v. CorVel Enterprise Comp, Inc.
ORS 656.245. The board had reasoned that, for purposes of
ORS 656.245, as determined under our case law constru-
ing ORS 656.005, “a ‘material cause’ is a substantial cause,
something more than minimal.” Id. at 566. In Mize, we
rejected the conclusion that, for purposes of ORS 656.245,
a material cause must be “more than minimal.” Rather, we
concluded that, in the absence of an indication that the leg-
islature had intended to adopt the definition of “material”
from our cases, the statute’s meaning had to be determined
as a matter of statutory construction under the template
described in PGE v. Bureau of Labor and Industries, 317 Or
606, 610-12, 859 P2d 1143 (1993). Mize, 208 Or App at 568.
That analysis led us to conclude that “the words ‘in material
part’ refer to a fact of ‘consequence’ regarding the need for
medical services.” Id. That construction, in turn, led us to
conclude that there is “no textual support in ORS 656.245(1)
for the proposition that the legislature intended to include
a ‘more than minimal’ standard in the statute.” Id. We fur-
ther concluded that a “minimal” or even “minor” cause can,
as a matter of law, constitute a cause “in material part” of
a claimant’s need for medical services, and we reversed the
board’s order. Id. at 570.1
As employer correctly asserts, in Knaggs v. Allegheny
Techs., 223 Or App 91, 195 P3d 431 (2008), we said that our
analysis in Mize had not altered the material contributing
cause standard of proof for the compensability of an injury
claim. We affirmed the board’s order in Knaggs, holding that
a “ ‘material contributing cause’ is a substantial cause, but
not necessarily the sole cause or even the most significant
cause.” Implicitly, we also held in Knaggs that, for purposes
of determining the initial compensability of an injury claim,
as distinct from the compensability of medical treatment for
an accepted claim under ORS 656.245, a material cause is
more than a minimal cause.
It is true that our opinions since Mize, and since
Knaggs, have referred to Mize’s “fact-of-consequence” defi-
nition of “material” in the context of determining the initial
1
The concurrence in Mize noted the challenge in attempting to give a precise
definition to “material” cause, as distinct from “major contributing cause,” in the
workers’ compensation context. 208 Or App at 572-74 (Wollheim, J., concurring)
(“[T]here is no single formulation of the requirement.”).
Cite as 318 Or App 641 (2022) 645
compensability of a claim. See, e.g., Staffing Servs., Inc. v.
Kalaveras, 241 Or App 130, 133, 249 P3d 550, rev den, 350
Or 423 (2011) (citing Mize and its definition of “material”
as the standard of proof for determining the compensability
of the claimant’s new or omitted medical condition claim).
But we agree with employer that that is not the applicable
meaning of “material” in the context of the material con-
tributing cause standard of proof of medical causation of an
initial injury. We therefore modify our opinion to state that
a material contributing cause is a substantial cause that
is more than a minimal cause. On remand, the board will
have an opportunity to reconsider whether claimant’s medi-
cal evidence meets that standard.
Reconsideration allowed; opinion modified and adhered
to as modified.