Robey v. Weir Esco

208 December 31, 2025 No. 1141

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Compensation of Joseph Robey,

Claimant.

Joseph ROBEY,

Petitioner,

v.

WEIR ESCO,

Respondent.

Workers’ Compensation Board

2104928, 2103887; A183717

Submitted November 5, 2025.

Jodie Anne Phillips Polich argued the cause for peti-

tioner. Also on the briefs was the Law Offices of Jodie Anne

Phillips Polich, P.C.

Alexander F. Sargent argued the cause for respondent.

Also on the brief was MacColl Busch Sato, PC.

Before Ortega, Presiding Judge, Joyce, Judge, and

Hellman, Judge.

JOYCE, J.

Affirmed.

Cite as 346 Or App 208 (2025) 209

JOYCE, J.

Claimant petitions for judicial review of a final

order by the Workers’ Compensation Board (board).1 He con-

tends that the board erred in finding that claimant failed

to meet his burden of proof to establish the compensability

of his injuries as a claim for a new/omitted condition. We

affirm.

Claimant on appeal raises two arguments: (1) the

board erred by analyzing the claim as an occupational dis-

ease rather than an industrial injury, because the employer,

through its processing agent, designated the claim as one

for an industrial injury on Form 1502, which bound the par-

ties, the board, and now us to that theory of liability; and (2)

substantial evidence does not support the board’s determi-

nation that the medical evidence did not support compensa-

bility of his condition.

So framed, we focus on the facts relevant to the two

questions. Those facts are undisputed. Claimant was 55 at

the time he filed the claim at issue here. Claimant worked

as a parts inspector for employer in a steel foundry. He had

several low back injuries as an adult unrelated to his work

for this employer. More specifically, he was involved in a

car crash that resulted in back injuries and then suffered a

low back strain while working a different job. He was also

involved in an ATV crash, where the ATV rolled over him,

causing fractures and other injuries to his back. In the years

leading up to the current claim, claimant sought treatment

for various low back pain issues and had been diagnosed

with a lumbar strain and a disc protrusion. He continued to

experience chronic low back pain.

Claimant’s job involved lifting 5- to 45-pound metal

parts from one place to another while twisting to his left

and then inspecting the metal parts. A typical day involved

examining about two tons of metal parts. From the end of

December 2020 through January 2021, employer experi-

enced a higher number of issues with its metal parts, which

required claimant to inspect more parts per day—roughly

three or four tons. During that two-to-three-week period,

1

The ALJ issued its opinion and order, which the board then adopted in full.

210 Robey v. Weir Esco

claimant’s chronic low back pain worsened. He filed an

injury claim, and a doctor diagnosed claimant with a work-

related lumbar strain.

Employer accepted claimant’s “low back muscle

strain” as a disabling work-related claim and issued Form

1502, “Insurer’s Report,” which it has to file within 14 days

of its initial decision to accept or deny the claim. See OAR

436-060-0011. The form contains a series of “check the

box” options, including one that requires the self-insured

employer to state the “status of claim at the time of fil-

ing this report.” One of the boxes that must be checked is

whether the claimant has an “occupational disease” or an

“injury.” Employer checked the box for “injury.”

In the following months, claimant saw Dr. Johansen.

Johansen believed that claimant’s work activities were the

major contributing cause of his need for treatment and his

injuries, which included annular tears and discogenic inju-

ries. Claimant then saw Dr. Brett, who also believed that

claimant’s work injury was the major contributing cause

of those injuries. Brett’s assessment was based in part on

claimant’s self-report that each of his prior back injuries had

healed and had “no residuals.” A physician’s assistant, Bobby

Welsh, believed that claimant’s annular tears were “likely

due to his work injury * * *.” Yet another doctor, Dr. Welch,

diagnosed claimant with a low back strain. Claimant sent a

letter to employer asking it to accept his annular tears.

Claimant was then examined by an insurer-ar-

ranged medical examiner, Dr. Bergquist. Bergquist diag-

nosed claimant with “chronic intermittent low back pain

secondary to age-related degenerative changes in the lum-

bar spine,” caused by genetics and time. Bergquist did not

believe that any physical activities, short of violent trauma,

could cause the low back pain, annular fissures, or dis-

cogenic injuries. He found it particularly notable, in com-

paring a 2015 MRI with a 2021 MRI, that there was no

significant difference between the two scans of claimant’s

lumbar spine, supporting a conclusion that claimant’s inju-

ries represented pre-existing arthritis. Welch concurred

with Bergquist’s conclusions that physical activity could

not cause his injuries and that his back pain was caused

Cite as 346 Or App 208 (2025) 211

by pre-existing degenerative changes. Welch believed that

the accepted lumbar strain was medically stationary with-

out permanent impairment and recommended the claim be

closed.

Employer subsequently denied compensability of

claimant’s annular fissures and discogenic ailments as new

or omitted conditions. It also closed claimant’s accepted low

back strain claim without a permanent impairment award.

The parties then took Welch’s deposition. She again

generally concurred with Bergquist’s medical examination

and conclusions. While Welch believed that claimant had a

work-related lumbar strain due to his increased workload,

she did not believe his annular fissures and discogenic con-

ditions were caused by that increased workload.

Another doctor, Dr. Kane, also concurred with

Bergquist’s conclusion that claimant’s annular tears and

discogenic conditions were due to pre-existing degenerative

arthritis and not caused by his job. Kane, in turn, disagreed

with Brett’s conclusion that claimant’s work activities

caused those conditions.

Brett then weighed in again, disagreeing with

Bergquist and Welch. In his view, the annular tears and

discogenic conditions were caused by the increased work

activities.

Before the ALJ, claimant challenged the denial of

compensability of his annular tears and discogenic inju-

ries and asked that the ALJ set aside employer’s denial.

Claimant argued that his claim should be analyzed as an

industrial injury rather than an occupational disease, that

he suffered from no pre-conditions or combined conditions,

and that the industrial injury from the increased workload

in that two-to-three-week period was a material contribut-

ing cause of his annular tears and discogenic injuries. The

distinction between industrial injury and occupational dis-

ease matters because, if analyzed as an occupational disease

claim, the issue is whether claimant’s work activities were

the major contributing cause of the disease. ORS 656.802(2)

(a). If, however, the claim is analyzed as an industrial injury

claim, the issue is whether claimant has satisfied his burden

212 Robey v. Weir Esco

to prove that the claimed condition exists and that the work

injury is a material contributing cause of the disability and

need for treatment. See ORS 656.005(7)(a); ORS 656.266(1);

ORS 656.245(1)(a). If claimant makes such a showing, and

the record establishes that the otherwise compensable injury

combined with a “pre-existing condition” to cause or prolong

disability or a need for treatment, employer must prove that

the combined condition is not compensable by showing that

the otherwise compensable injury was not the major contrib-

uting cause of the disability or need for treatment of the com-

bined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a).

As noted, claimant argues that his claim should

be analyzed as an industrial injury rather than as an

occupational disease. His primary argument in support

of that contention is that the board (and now this court) is

legally obligated to treat his claim as an industrial injury

claim because the employer, when it submitted Form 1502,

“checked the box” indicating that the claim was an injury

instead of the box indicating an occupational disease claim.2

According to claimant, that “check the box” is legally bind-

ing for all purposes for the remainder of the case:

“By allowing an insurer to initially accept a claim as an

injury, then later, based on the nature of the condition

claimed, to identify the claim as one for an occupational

disease, impermissibly raises the burden of proof from

material contributing cause of the condition or its treat-

ment, to major contributing cause of the condition itself.”

We disagree with claimant’s threshold argument

that the form dictates or binds an employer to a particular

theory of compensability. As an initial matter, claimant does

not point to any source of law that supports the proposition

that he advances. Indeed, it would be somewhat anomalous

if an insurer could, by virtue of checking a box on a form in

the early stages of proceedings, bind the board and review-

ing courts to a legal analytical framework. Form 1502 is

expressly preliminary in nature, stating that the employer

is to provide the status of the claim “at the time of filing

this report.” A 1502 form is distinct and separate from the

2

Employer has not argued that the form did not classify the acceptance of

the claim as an industrial injury, rather than an occupational disease claim.

Cite as 346 Or App 208 (2025) 213

Notice of Acceptance required by ORS 656.262(6) and OAR

436-060-0140(2), (4), or (6), which requires a detailed descrip-

tion of the compensable conditions, disabling or non-dis-

abling status, reinstatement rights, and the requirements

for seeking acceptance of new or omitted conditions, among

other things.

Once the Notice of Acceptance or the denial is

issued, it is for the board (and then the reviewing courts) to

decide the appropriate legal standard. That much is clear

from existing case law. Both we and the Supreme Court

have noted that “the board’s first task is to determine which

provisions of the Workers’ Compensation Law are applica-

ble.” Hewlett-Packard Co. v. Renalds, 132 Or App 288, 292,

888 P2d 92 (1995) (quoting DiBrito v. SAIF, 319 Or 244, 248,

875 P2d 459 (1994)). In Hewlett-Packard Co., the employer

argued that because the claimant had only raised an injury

theory, the board erred in concluding that the claimant’s

condition was compensable as an occupational disease. Id.

at 290. We observed that the fact that the claimant “had not

previously labeled her claim as one for an occupational dis-

ease is immaterial.” Id. at 292. “[A] claim may be cognizable

under either an occupational disease or an accidental injury

theory[,]” and the board determines which is the proper

legal framework. Id.

Having concluded that the form does not dictate the

board’s authority to determine the proper analytical frame-

work, we turn to the question of whether the Board applied

the correct legal standard, i.e., the occupational disease

standard rather than the industrial injury standard. “We

review the board’s legal conclusions for legal error and its

determinations on factual issues for substantial evidence,

which includes substantial reasoning.” Luton v. Willamette

Valley Rehabilitation Center, 272 Or App 487, 490, 356 P3d

150 (2015) (citing ORS 183.482(8) and Cummings v. SAIF

Corp, 197 Or App 312, 318, 105 P3d 875 (2005)).

The board concluded that claimant’s condition

arose over time and analyzed it as an occupational disease.

See generally James v. SAIF, 290 Or 343, 348, 614 P2d 565

(1981) (“What sets occupational diseases apart from acciden-

tal injuries is both the fact that they cannot honestly be said

214 Robey v. Weir Esco

to be unexpected, since they are recognized as an inherent

hazard of continued exposure to conditions of the particu-

lar employment, and the fact that they are gradual rather

than sudden in onset.” (Internal quotation marks, brackets,

and citation omitted.)). The focus of the occupational disease

analysis is on whether the development of claimant’s condi-

tion was an “event,” as distinct from an ongoing condition

or state of the body, and whether the onset of his problems

was sudden or gradual. Mathel v. Josephine County, 319 Or

235, 240, 875 P2d 455 (1994). The phrase “sudden in onset”

refers to an injury occurring during a short, discrete period,

rather than over a long period of time. Donald Drake Co.

v. Lundmark, 63 Or App 261, 266, 663 P2d 1303 (1983),

rev den, 296 Or 350 (1984). “[A]n injury based on repetitive

trauma must develop within a discrete, identifiable period

of time due to specific activity.” LP Company v. Disdero

Structural, 118 Or App 36, 40, 845 P2d 1305 (1993) (empha-

sis in original).

Here, in support of its conclusion that claimant’s

claim should be analyzed as an occupational disease, the

board observed that claimant had a series of low back inju-

ries and chronic low back pain before the period between

December 2020 and January 2021—when he was lifting

heavier loads at work. The board was persuaded by the opin-

ions of Bergquist, Kane, and Welch, all of whom believed

that the evidence supported the finding that claimant’s

annular tears and discogenic conditions were a result of

age-related degenerative changes. In particular, the board

found significant that Bergquist reviewed a 2015 MRI and

a 2021 MRI scan and concluded that there was little dif-

ference between the two, a conclusion supported by Welch.

That, in turn, persuaded the board that claimant’s condition

was one that developed over time.

Although claimant contends that Brett’s opinion,

which attributed claimant’s conditions to his increased

work activities, is more persuasive than those of Bergquist,

Welch, and Kane, the board expressly found Brett’s opinion

to be unpersuasive. That was because Brett did not review

or compare the two MRI scans, did not address or rebut the

opinions of Bergquist, Welch, and Kane, and his conclusions

Cite as 346 Or App 208 (2025) 215

were based on claimant’s own statements of his medical

and injury history. The board found that claimant was not

a “reliable historian,” inasmuch as he did not recall being

in a motor vehicle crash and did not recall low back injuries

in 2003 and 2004 (the ATV crash), all of which resulted in

low back and hip pain and a fractured lumbar spine ver-

tebra. Given that Brett did not describe any of those prior

injuries and given claimant’s “unreliability as a historian,”

the board concluded that Brett was not well-informed. The

board’s conclusions are supported by substantial evidence.

ORS 183.482(8)(c); Garcia v. Boise Cascade Corp., 309 Or

292, 294, 787 P2d 884 (1990) (“Substantial evidence sup-

ports a finding when the record, viewed as a whole, permits

a reasonable person to make the finding.”). Therefore, the

board did not err in analyzing claimant’s condition as an

occupational disease rather than as an injury.

Affirmed.