The opinion
60 October 8, 2025 No. 870
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Compensation of Nancy L. Anderson,
Claimant.
FRED MEYER STORES - KROGER CO.,
Petitioner,
v.
Nancy L. ANDERSON,
Respondent.
Workers’ Compensation Board
2104738;
A181175
Argued and submitted July 31, 2024.
Rebecca A. Watkins argued the cause for petitioner. Also
on the brief was SBH Legal.
No appearance for respondent.
Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
POWERS, J.
Affirmed.
Cite as 344 Or App 60 (2025) 61
POWERS, J.
In this workers’ compensation case, employer
Fred Meyer Stores, Inc., seeks judicial review of an order
of the Workers’ Compensation Board reversing employer’s
denial of claimant’s claim for an injury to the right knee.
On review, employer first asserts that the board erred in
characterizing claimant’s claim as an injury, instead of an
occupational disease, which would be subject to a higher
standard of proof. Employer also contends that the board’s
order lacks substantial evidence and substantial reason to
the extent that the board made factual errors that caused
the board to be incorrectly persuaded by the medical opin-
ion of Dr. North, who examined claimant on claimant’s
behalf, and to discount the opinions of other physicians who
supported employer’s position that claimant had not expe-
rienced an injury but was simply experiencing symptoms
of her pre-existing osteoarthritis. Claimant did not file an
answering brief and thereby waived appearance on review.
See ORAP 5.60 (providing that, “[i]f the respondent files no
brief, the cause will be submitted on the appellant’s open-
ing brief and appellant’s oral argument, and the respondent
shall not be allowed to argue the case”). As explained below,
we conclude that the board did not commit legal error in
finding that claimant’s knee condition arose during a dis-
crete period of time and characterizing claimant’s claimed
condition as an injury. Further, we conclude that the board’s
order is supported by substantial evidence and substantial
reason. Accordingly, we affirm.
We review the board’s order under ORS 183.482(7)
and (8) and ORS 656.298(7) for substantial evidence and
errors of law. We begin with a brief overview of the factual
and procedural background to provide context for our dis-
cussion of employer’s two assignments of error.
Claimant, who worked for employer as a cashier,
was required to stand for long periods of time and to pivot
as she checked groceries. The record shows that, in the
past, claimant had sought medical treatment for knee pain
and had been diagnosed with possible osteoarthritis in her
knees. Claimant testified that, although she had recently
experienced knee pain, the pain became much more intense
62 Fred Meyer Stores - Kroger Co. v. Anderson
during a three-week period in July 2021, when her work
became very busy because many coworkers were out with
COVID. The knee became so swollen and painful that claim-
ant began to use a cane at work.
On the day of the injury, claimant was busy and
had to stand longer than normal and help a steady stream
of customers. Because of the intensity of the work, claim-
ant rushed to her scheduled work break. Because of right
knee discomfort, she walked with a stiff-legged gait with
her right foot externally rotated. As claimant walked, she
felt sharp and intense pain and heard a crack and pop, her
right knee gave way, and she fell against a shelf. A customer
helped claimant to the break room, where she applied ice.
Medical imaging revealed mild to moderate osteo-
arthritis and a slight meniscus tear. Physicians who exam-
ined claimant diagnosed a knee strain and sprain. Claimant
attended an independent medical examination on employer’s
behalf by Dr. Smith, an orthopedist, who, based on medical
imaging, opined that the incident at work and the meniscus
tear were caused by osteoarthritis and not related to claim-
ant’s work activity. Employer then denied the claim.
Claimant sought an independent medical exam-
ination from North, also an orthopedist. Based on North’s
examination of claimant and the medical record, including
the record of claimant’s pre-existing osteoarthritis, North
opined that, as a result of “[w]orking, standing, lifting gro-
ceries and pivoting as a cashier” claimant had experienced
“an undiagnosed symptomatic occupational knee strain”
and increased knee pain some two weeks before the incident
in which her knee gave way, which was a result of her abnor-
mal gait from the pain of the knee strain.
In affirming an order of an administrative law judge,
the board found North’s opinion to be persuasive. In evalu-
ating the medical record, the board explained that North
had an accurate medical history and that his diagnosis was
well-explained and consistent with claimant’s reporting and
the medical record. On the other hand, the board reasoned
that the physicians in support of employer’s position had
overemphasized the absence of a triggering event on the job
Cite as 344 Or App 60 (2025) 63
that might have caused an injury. The board considered but
rejected employer’s contention that the claim should be char-
acterized as an occupational disease rather than an injury,
concluding that, although claimant’s most immediate knee
problems arose over a period of a few weeks, she nonethe-
less had experienced an “injury,” because the symptoms and
diagnosed strain and sprain had occurred over a discrete
period. The board explained,
“[North’s] opinion, considered in light of claimant’s testi-
mony and the greater record, shows that over the few weeks
leading up to July 21, 2021, claimant’s work activity while
standing caused increased symptoms that Dr. North said
was an undiagnosed knee strain. The knee strain affected
the mechanics of claimant’s gait, and the altered mechan-
ics contributed to a greater injury on July 21, 2021, when
claimant fell into shelving while going to her store’s break-
room. This record establishes that, regardless of what knee
symptoms claimant may have felt before the few weeks up
to July 21, 2021, she sustained injury traceable to a rela-
tively short, discrete period of time.”
On judicial review, employer contends in its first
assignment of error that the board erred in characterizing
claimant’s claim as one for an injury, because a preponder-
ance of the evidence shows that claimant’s knee condition
arose over a long period of time and was not “sudden” or
discrete, as is required for an injury. See James v. SAIF,
290 Or 343, 348, 624 P2d 565 (1981) (adopting the reason-
ing in O’Neal v. Sisters of Providence, 22 Or App 9, 16, 537
P2d 580 (1975), which concluded that what set occupational
diseases apart from accidental injuries is that they cannot
be said to be unexpected and that they are gradual rather
than sudden in onset); see also Smirnoff v. SAIF, 188 Or App
438, 446, 72 P3d 118 (2003) (explaining that “the onset of
the condition is the determining factor in deciding if a claim
is for an injury or a disease”). Employer asserts that the
board’s order is vague and fails to identify what knee con-
dition it is considering to be an injury. We read the board’s
order differently.
Contrary to employer’s contention, the board unam-
biguously addressed its analysis to the claimed knee condition
that claimant experienced during the several weeks before
64 Fred Meyer Stores - Kroger Co. v. Anderson
and including the work incident, which North identified as a
strain and sprain. In our view, the board’s order shows that
it did not simply “carve out” as an “injury” claimant’s symp-
toms over a period of a few weeks before the work incident as
employer contends. Claimant testified and reported to phy-
sicians that, although she had been experiencing knee pain
for several months, the knee pain had increased and became
severe weeks before the incident occurred. North attributed
that increased pain to a knee strain.
We further conclude that the board did not commit
legal error in finding that claimant’s claimed knee condition
arose during a discrete period of time and characterizing
claimant’s claimed condition as an injury. As we explained
in Valtinson v. SAIF, 56 Or App 184, 188, 641 P2d 598 (1982),
although a condition that arises over a long period of time
is not an “injury,” an injury need not be “instantaneous”—it
may occur over a short discrete period of time. Here, claim-
ant identified a short discrete period of time—the several
weeks before the work incident—during which her knee
symptoms intensified because of an increase in standing
as a result of employer being short-staffed. North, who was
aware of claimant’s pre-existing osteoarthritis, described
the mechanism of injury during that discrete period—
first, an undiagnosed “strain,” followed several weeks later
by a sprain as claimant attempted to walk swiftly to the
break room with her foot turned out because of her knee
pain. North cited medical records and imaging in support
of his opinion. At least one other physician who was aware
of claimant’s pre-existing osteoarthritis had also diagnosed
a knee sprain. The board could reasonably rely on North’s
opinion in support of its finding that claimant’s claim arose
during a discrete period and constituted a claim for an occu-
pational injury rather than a disease.1
In its second assignment of error, employer argues
that the board erred in relying on North’s opinion, because
that opinion is unpersuasive and contradicts the board’s own
findings. Specifically, the board made findings that claimant
1
Employer sidelined the strain/sprain diagnoses and argued that the “condi-
tion we’re really looking at here is osteoarthritis and the degenerative meniscus
tear.” But claimant’s attorney noted in argument to the board that claimant has
not sought compensation for osteoarthritis or the meniscus tear.
Cite as 344 Or App 60 (2025) 65
experienced right-knee symptoms months before July 2021;
however, according to employer, North “believed claimant’s
right knee complaints started just two weeks before July
21, 2021.” We reject employer’s contention on review. That
is, contrary to employer’s argument, the board could rea-
sonably conclude that North’s opinion was consistent with
the board’s findings and that North was aware that claim-
ant had experienced knee issues in the past. North’s report
summarized medical records from as far back as 2013 to
the present time, which included references to claimant’s
reports of right knee symptoms that had been ongoing for
several months before the work incident. The record sup-
ports the board’s finding that North was aware of claimant’s
pre-existing osteoarthritis as well as her knee symptoms
dating back several months. We reject employer’s argument
that, in a “likely attempt” to reconcile North’s “inaccurate
information, the board then arbitrarily focused on a limited
period of symptoms rather than the full course of claimant’s
right knee symptoms.”
Finally, the board adequately explained why it found
North’s opinion to be more persuasive and why it found the
opinions of other physicians to be less persuasive. For exam-
ple, the board noted that, in examining claimant, Smith had
spent only 15 to 20 minutes—considerably less time than
North—and the board faulted Smith for failing to address
the change in claimant’s symptoms in the several weeks
before the work incident and for failing to be aware that
claimant had experienced a “pop” at the time of the work
incident. Employer criticizes the board’s observation about
that pop, contending that the record shows that Smith was
aware of the pop. In a concurrence letter, however, Smith
concurred in employer’s attorney’s statement that, at the
time of the work incident, claimant had only experienced
pain, not a pop. In short, we reject employer’s challenges in
its second assignment of error.
Affirmed.