Johnson v. State Accident Insurance Fund Corp.

We have granted reconsideration in this case to respond to petitioner’s contention that we applied the wrong standard of proof in her workers’ compensation claim. Petitioner points to language in the next-to-last paragraph of the opinion in which we stated that the two doctors who testified “* * * could not say with any medical certainty that her work caused any acceleration or worsening of the underlying condition.” Petitioner maintains that “certainty” is not required. Petitioner is correct. We stated clearly, earlier in the opinion, that we affirmed the Board’s finding that claimant had not shown by a preponderance of the evidence that her work had caused a worsening of her underlying disease. 54 Or App at 623. See also, Hutcheson v. Weyerhaeuser, 288 Or 51, 602 P2d 268 (1979). Our paraphrasing of the doctors’ testimony did not change the quantum of proof. However, because the wording of our former opinion may be misleading, the paragraph at issue is amended to read:

“The two doctors who testified by deposition as to claimant’s condition stated clearly and repeatedly, in response to precise questioning by claimant’s attorney, that, although claimant’s symptoms were increased, they could not say that her work caused any acceleration or worsening of the underlying condition. The Board’s denial was therefore correct.”

Petition for reconsideration granted; former opinion modified and adhered to.