SAIf Corp. v. Alton

ARMSTRONG, J.,

concurring.

I agree with the majority that we must remand this case to the Workers’ Compensation Board for reconsideration. I write separately because there are two points that I think deserve particular emphasis.

First, the majority makes it clear that, contrary to SAIF’s argument, our decision in SAIF v. Danboise, 147 Or App 550 , 937 P2d 127 , rev den 325 Or 438 (1997), does not state a rule of law of what constitutes legally sufficient evidence to prove that a claimant’s injury caused his or her current condition. Rather, Danboise is simply one example, out of many possible examples, of how evidence may be sufficient to prove that connection. All we did in Danboise was to determine both that there was substantial evidence to support the inferences that the Board drew in that case and that its reasoning in that case satisfied the substantial reason test. It remains the Board’s responsibility to examine the evidence in each case in order to determine what inferences it will draw and to explain its rationale for drawing them. Indeed, the *504 problem with this case, as the majority describes it, is primarily one of the Board’s failure to give an adequate explanation for the result that it reached, not one of the evidence being legally insufficient.

My second point concerns the Board’s options in reexamining the record on remand. The problem that it will face in this and other cases comes from the fact that witnesses, treating physicians, independent experts, medical arbiters, and others do not necessarily express themselves in the precise words that the Board might prefer. Thus, part of the Board’s responsibility in finding the facts is to determine the meaning of the evidence before it — that is, what the witnesses and authors of reports intended to convey by the words that they used. 1 In this case, the Board must review a number of opinions in order to draw a conclusion about the relationship between claimant’s injury and his current condition, and it must understand those opinions in their proper context. Thus, before Dr. Williams, the neurosurgeon, examined claimant, DCBS told him that “[t]he enclosed medicals, which may include information concerning unrelated or preexisting conditions, are to be reviewed for determining impairment due to the accepted condition(s), including any direct medical sequelae.” It may be that the Board will conclude that, in light of those instructions, Williams’s failure to relate claimant’s condition to anything other than the compensable injury meant that he believed that the injury was the cause of claimant’s current condition and that his report embodied that opinion. Whether the Board reaches that conclusion on remand, and, if it does, what weight it gives Williams’s opinion in light of the rest of the record, are, of course, matters for it, not for us. I point out the possibility simply to illustrate why it would seriously distort the fact-finding process to follow SAIF’s suggestion in this case and treat the question as one of law.

*505 With those understandings, I concur in the majority’s decision to reverse the Board and remand the case for reconsideration.

Wollheim, J., joins in this concurrence.

I do not mean, as the majority seems to suggest, that the Board may create a medical opinion out of thin air. Rather, the Board has the responsibility to determine what the medical expert meant, and that includes determining the meaning of something that may be inartfully expressed.