Florence v. State Accident Insurance Fund Corp.

ROBERTS, J.,

dissenting.

I dissent from the majority opinion because I do not agree that “the Board’s resort to Weller is obscure.” 55 Or App at 470.

*471 Weller v. Union Carbide Corporation, 288 Or 27, 29 , 602 P2d 259 (1979), posed the following question: “Does a worker have a compensable claim where: (1) he has an underlying disease which is symptomatic; (2) his work results in a worsening of his symptoms not produced by a concomitant worsening of the underlying disease process; and (3) the worsening requires either medical services or results in disability or both?” The court then answered the question in the negative. 1

The Supreme Court allowed review of Weller “along with [three other cases] * * * to consider problems seemingly common to these cases of the effect of work activity and conditions on an underlying pathological condition in the worker’s body.” 288 Or at 29 . My interpretation of Weller is that where that “work activity and conditions” includes a job-related injury, and that injury affects an underlying pathological condition of the worker, the Weller test appropriately can be applied. One element of the test is proof by a preponderance of evidence that a worsening of the underlying disease has occurred. 288 Or at 35 . Claimant here failed to prove that the underlying disease in his right knee has worsened as a result of the injury to his left knee.

The degenerative arthritis in claimant’s right knee was not caused by the injury to his left knee. What has occurred is an onset of symptoms. Claimant’s brief admits that

“As to whether the disease process was anatomically or physiologically worsened or merely made symptomatic by virtue of the traumatic injury, the best the treating doctor could do without surgery to examine the physiology of the knee was to say that the injury to the left knee was like throwing a match into a gas can.”

Claimant states “the disability in the right knee was caused by the pathological change to the left knee.” If Weller applies, this is not the proper analysis. The question is whether there has been a worsening of the underlying disease in the right knee caused by circumstances to which claimant is not ordinarily exposed other than at work.

*472 Beaudry v. Winchester Plywood Co., 255 Or 503 , 469 P2d 25 (1970). Claimant’s treating physician testified:

“* * * It’s not a great accelerating of degenerative arthritis that occurs. What it is, is making an increase there that was minimally symptomatic. Not enough to come into the hospital or see a doctor, to making that symptomatic where he does rely and wants to rely on medication * * * . You’re not going to see any change in his knee joints for a number of years, a lot more changes. It’s a gradual thing, so it’s not a great change, but it’s a — it’s the taking of that asymptomatic and making it symptomatic enough for me to have to do something about it.

“Q. I don’t want to belabor the point. My impression, if this man - I don’t know what his true history is - if he had been working for five years on this grader until September when he quits, then that five-year period produced some acceleration gradually of his knee conditions, both knees?

“A. That’s true.

“Q. And we’re talking the about [sic] right knee. We also have another factor of him compensating for his left knee after a slip and fall, putting a little more pressure on the right?

“A. (nodding head).

“Q. And it’s the two of these conditions together, plus any other variables which are unknown, which produces his disability?

“A. At the present time, yes.

<<* * * * *

“Q. Would it be your opinion that sometime in the future he would need resurfacing of both knees?

“A. If he had not had anything?

“Q. No injuries. If he worked, but just as a result of the natural progression of this degenerative process.

“A. There’s no question about it. This man’s going to end up having it, regardless of what he’s done, job or no job, if he would have stopped ten years ago. * * *

<<* * * * *

“A. I think he was — I think this whole thing just happened to get him at a time that he was getting close to this whole thing anyway. * * * .

ÍÍ* * * * * JJ

As to causation, the physician was quite clear that both the work and the injury were only a part of the problem:

*473 <<* * * * *

“A. I think any activities he’s going to do — he has chronic, long-standing degenerative knee joint disease. Any activity he’s going to do is going to bother him. It’s going to aggravate him. That condition is stirred up, and I can’t — I’m unable to separate, you know, how much of that is home, what percentage of it is work. It’s all kind of the total thing.

<<‡ * * * * 99

The other two medical opinions were that claimant’s injury precipitated symptoms in the right knee or aggravated the pre-existing condition of that knee. Without more, the appearance of an increase in symptoms of an underlying disease is not in itself compensable. See Cooper v. SAIF, 54 Or App 659 , 635 P2d 1067 ; Autwell v. Tri-Met, 48 Or App 99 , 615 P2d 1201 , rev den 290 Or 211 (1980). Likewise, pain resulting in disability or requiring medical services, whether temporary or permanent, is compensable only if an underlying pathological change in the disease has been established. See Stupfel v. Edward Hines Lumber Co., 288 Or 39, 43 , 602 P2d 264 (1979).

I would affirm the decision of the board.

Even though the claim here is one for medical services, not compensation, for the uninjured knee, that distinction does not make any difference.