Torres v. SAIF

408

Argued and submitted December 17, 2021, affirmed August 24, 2022

In the Matter of the Compensation of

Guillermo Torres, Claimant.

Guillermo TORRES,

Petitioner,

v.

SAIF CORPORATION

and Torres Farms - Torres Contracting,

Respondents.

Workers’ Compensation Board

1800074; A174136

516 P3d 735

In this combined condition case, claimant seeks review of the Workers’ Com-

pensation Board (board) order upholding SAIF’s denial of claimant’s injury claim

for a left foot condition. Claimant argues on review that the board erred by con-

cluding that his otherwise compensable injury combined with a preexisting dia-

betic condition and that the work-related injury was not the major contributing

cause of his left foot condition and need for treatment. SAIF asks the Court of

Appeals to affirm the order and also raises a cross-assignment of error argu-

ing that substantial evidence did not support the board’s finding that an other-

wise compensable injury was at least a material contributing cause of the injury.

Held: The board properly weighed conflicting medical opinions to determine the

major contributing cause of claimant’s injury, a process which it explained in its

order. Thus, the board’s order was supported by substantial evidence and reason.

Affirmed.

Aaron E. Clingerman argued the cause for petitioner.

Also on the briefs was Pancic Law.

Daniel Edward Walker argued the cause and filed the

briefs for respondents.

Before Mooney, Presiding Judge, and Pagán, Judge, and

DeVore, Senior Judge.*

MOONEY, P. J.

Affirmed.

______________

* Pagán, J., vice DeHoog, J. pro tempore.

Cite as 321 Or App 408 (2022) 409

MOONEY, P. J.

This is a “combined condition” case in which claim-

ant seeks review of the Workers’ Compensation Board (board)

order that affirmed the ALJ’s order upholding SAIF’s denial

of claimant’s injury claim for a left foot condition. Claimant

assigns error to the board’s conclusions that his other-

wise compensable injury (1) combined with a preexisting

diabetic condition to cause the left foot condition and the

associated need for treatment, and (2) that the work-related

injury was not the major contributing cause of the combined

left foot condition and need for treatment. SAIF asks us to

affirm the order on review and, additionally, raises a cross-

assignment of error arguing that substantial evidence did

not support the board’s finding that claimant’s “work activ-

ities were materially related to his injury claim.” We affirm

the board’s order in its entirety.

We review the board’s findings of fact for substan-

tial evidence and reason. ORS 183.482(8)(c). “Substantial

evidence exists to support a finding of fact when the record,

viewed as a whole, would permit a reasonable person to

make that finding.” Id. When reviewing for substantial rea-

son, “we determine whether the board provided a rational

explanation of how its factual findings lead to the legal con-

clusions on which the order is based.” Arms v. SAIF, 268 Or

App 761, 767, 343 P3d 659 (2015).

Claimant began working as a firefighter for SAIF’s

insured employer, Torres Farms - Torres Contracting (Torres

Farms) on August 6, 2017. There is no dispute that before

that employment began, claimant had been diagnosed with,

and treated for, diabetes with related complaints of numb-

ness in his feet. There is also no dispute that claimant’s

work activities as a firefighter for Torres Farms included

walking on steep mountain terrain, while wearing boots,

for several hours per shift. Claimant developed a blister on

his left foot, which he noticed on August 20, 2017. He worked

until September 12, when he was no longer able to continue

due to left foot pain.

Claimant sought treatment for his left foot condi-

tion on October 10, 2017, from La Clínica de Nuestra Señora

de Guadalupe. The records from that encounter reflect that

410 Torres v. SAIF

he had “a small wound in left foot because of friction with

his boots.” He was referred to the emergency department

where he was found to have a “1.5 cm diameter ulcer” on

the “lateral aspect of the left foot over the fifth metatarsal

head.” Infection was suspected and he was admitted to the

hospital. Active infection in the left fifth toe was confirmed,

and claimant was later discharged with a plan for outpatient

antibiotics and wound debridement, with the hope of avoid-

ing surgery. Dr. Stevens, a podiatrist, provided that course

of treatment, but the infection did not abate and, ultimately,

on December 13, 2017, Stevens amputated claimant’s left

fifth toe and accompanying fifth metatarsal, due to osteo-

myelitis of that toe and metatarsal.

While claimant was still undergoing outpatient

treatment, he completed a form requesting workers’ compen-

sation benefits for a work-related injury, specifically identify-

ing August 20, 2017, as the date of injury. He also identified

the blister on his left foot as the injury and attributed that

injury to his work as a firefighter. SAIF denied that claim

shortly after the amputation, reasoning that the left foot

ulcer was “not compensably related to [his] employment.”

Dr. Curosh, an endocrinologist, performed an inde-

pendent medical examination at SAIF’s request and con-

cluded that claimant’s work activities did not significantly

contribute to the ulcer. She further opined that “the major

causes of his left foot ulcer were poorly controlled diabetes,

ill-fitting shoes, failure to check his feet for blisters, failure

to treat the blister and change shoes, continuing to work

with a worsening blister, and failure to seek timely medical

care.” Curosh agreed with SAIF correspondence that stated:

“[T]he blister combined with the preexisting diabetes to

cause or prolong treatment in the sense the blister devel-

oped into a diabetic ulcer * * *. The diabetes actively con-

tributed to the ulcer and the amputation because it causes

peripheral neuropathy and diminished sensation. Initially,

it caused [claimant] to not notice the blister and thus not

address it * * *. The diminished blood flow compromised

healing. Additionally, elevated blood sugars from the diabe-

tes render the tissue more susceptible to bacterial infection.

It was a combination of the diabetic neuropathy, vascular

disease, and increased blood sugar levels that led to the

Cite as 321 Or App 408 (2022) 411

diabetic ulcer and eventual amputation. The work-related

blister may have precipitated these events, but was not the

major cause * * * of the eventual ulcer and amputation.”

Stevens, on the other hand, agreed with correspondence

from claimant’s counsel that claimant’s work activities were

the major contributing cause of the left foot condition and

eventual amputation. He also agreed that claimant’s diabe-

tes made claimant more susceptible to an infection.

An injury is compensable when it arises “out of and

in the course of employment requiring medical services or

resulting in disability or death” and “if the work is a mate-

rial contributing cause of the injury.” ORS 656.005(7)(a);

Coleman v. SAIF, 203 Or App 442, 446, 125 P3d 845 (2005).

“However, when an otherwise compensable injury combines

with a preexisting condition to cause or prolong a disability

or the need for treatment, the combined condition is compen-

sable only if the otherwise compensable injury is the major

contributing cause of the disability or need for treatment.”

SAIF v. Harrison, 299 Or App 104, 106, 448 P3d 662 (2019)

(citing ORS 656.005(7)(a)(B)).

The claimant has the burden of proving the pres-

ence of an otherwise compensable injury. ORS 656.266(1).

However, in combined condition claims,

“[o]nce the worker establishes an otherwise compensa-

ble injury, the employer shall bear the burden of proof to

establish the otherwise compensable injury is not, or is no

longer, the major contributing cause of the disability of the

combined condition or * * * the need for treatment[.]”

ORS 656.266(2)(a). In this case, the board determined that

claimant had established an otherwise compensable injury

and that it was a material contributing cause of his need for

treatment, which shifted the burden to SAIF to prove that

the otherwise compensable injury, the blister, was not the

major contributing cause of claimant’s disability or need for

treatment. Determining the major contributing cause is a

complex medical question that must be answered through

expert medical opinion that evaluates “the relative contri-

bution of different causes of an injury or disease and decid-

ing which is the primary cause.” Dietz v. Ramuda, 130 Or

App 397, 401, 882 P2d 618 (1994), rev dismissed, 321 Or

412 Torres v. SAIF

416 (1995) (stating rule regarding combined conditions); see

Harrison, 299 Or App at 112. When reviewing the board’s

evaluation of medical opinions, “we do not substitute our

judgment for that of the board”; we determine only whether

the board’s evaluation was reasonable. SAIF v. Pepperling,

237 Or App 79, 85, 238 P3d 1013 (2010).

Here, the board first determined that claimant car-

ried his burden to prove an otherwise compensable injury

was at least a material contributing cause of his need for

treatment. SAIF argues in its cross-assignment of error

that that determination is not supported by substantial evi-

dence. We disagree. The board reviewed both Stevens’s and

Curosh’s opinions and found that they both supported the

finding that claimant’s work injury was at least a material

contributing cause of his need for treatment. Stevens con-

cluded that the firefighting activities caused the blister and

the subsequent bone infections which were complicated by

claimant’s diabetes. Curosh acknowledged that the blister

itself was developed at work, which supports (or at least does

not necessarily undermine) Stevens’s opinion that claim-

ant’s work was a material contributing cause. The board’s

order relies on the opinions of both medical experts in the

case and is based on substantial reason. Therefore, we reject

SAIF’s cross-assignment.

Next, the board determined that SAIF had proved

the existence of a combined condition and that the work injury

was not the major contributing cause of claimant’s need for

treatment. The board recognized that it was Stevens’s opin-

ion that claimant’s diabetes did not actively contribute to

claimant’s foot condition, but only made him more suscep-

tible to injury, which would make the diabetes insufficient

as a legally cognizable preexisting condition to categorize

the claim as a combined condition. Corkum v. Bi-Mart Corp.,

271 Or App 411, 422, 350 P3d 585 (2015); Murdoch v. SAIF,

223 Or App 144, 149-50, 194 P3d 854 (2008), rev den, 346

Or 361 (2009) (concluding that the claimant’s diabetes hin-

dered his ability to heal but did not actively contribute to

the injury and was therefore not a preexisting condition

for the purposes of a combined condition claim). But, as

the board explained, Stevens initially described claimant’s

foot condition as a diabetic ulcer and not as a work-caused

Cite as 321 Or App 408 (2022) 413

blister, which the board identified as a significant inconsis-

tency within Stevens’s opinion about causation that made

his opinion less persuasive than that of Curosh. Curosh

expressly found that claimant’s diabetes actively contrib-

uted to the injury because it caused his peripheral neuropa-

thy and diminished sensation. The board was persuaded by

Curosh’s later clarification, consistent with her opinion as

originally stated, that the diabetes caused peripheral neu-

ropathy, diminished sensation, and diminished blood flow,

and actively contributed to claimant’s need for treatment.

Ultimately, the board weighed Stevens’s and Curosh’s

opinions in analyzing the possible causes of claimant’s

injury to determine the primary cause, and it explained

that process in its order. Relying on the opinions of both

medical experts, it found that the blister was an otherwise

compensable injury that was a material contributing cause

of the need for treatment. In the face of conflicting medi-

cal opinions on the question of primary causation, it relied

upon Curosh because, as it explained, it found her opinion to

be more thorough and better reasoned and, therefore, more

persuasive than that of Stevens. The board’s conclusion that

claimant’s diabetes was a preexisting condition for the pur-

poses of combined-condition analysis and that the diabetes,

rather than the work-related blister, was the major contrib-

uting cause of claimant’s foot condition and need for treat-

ment was, thus, a logical conclusion based on the evidence

presented. Substantial evidence and reason support the

board’s view of the evidence and its ultimate conclusion that

the combined condition is not covered. Therefore, we reject

both of claimant’s assignments of error, as well as the cross-

assignment of error asserted by SAIF. The board’s order is

affirmed.

Affirmed.