DeBoard v. Meyer
DeBoard v. Meyer
Opinion of the Court
Claimant seeks review of an order of the Workers’ Compensation Board that upheld employer’s denials of her claim that employer add to her accepted 2012 injury claim the new or omitted condition of disc “protrusions” in the thoracic spine. The board adopted the determination of the administrative law judge (ALJ) that claimant’s undisputed disc pathology of the thoracic spine was a degenerative disc “bulges” condition that is not “equivalent” to disc “protrusions,” and that claimant, therefore, failed to prove the existence of the claimed condition. Claimant argues that the board erred in relying on the diagnosis for the bulge condition as the basis for upholding employer’s denials. We conclude, however, that the board found as a factual matter that the diagnoses describe distinct conditions and that the “disc bulge” condition from which claimant suffers is not encompassed within the scope of her claim for a new or omitted condition of “disc protrusions.” We also conclude that those findings are supported by substantial evidence and, accordingly, affirm.
The historical facts are not in dispute and are taken from the board’s findings.
The evidence at the hearing included the opinions of four doctors who commented on the nature of claimant’s thoracic disc condition. Because the wording of those opinions forms the basis for the parties’ dispute, we quote extensively from those opinions where pertinent. Arbeene, whose opinion the board primarily relied upon, is an orthopedic surgeon who examined claimant at employer’s request. He reviewed the MRI image and described it as showing “multilevel degenerative disc disease changes in the mid thoracic disc spaces.” He concluded that claimant’s “disc abnormalities” were likely caused by non-work-related degenerative processes. Later, Arbeene agreed with a summary of his opinion that had been prepared by employer’s lawyer. He confirmed that, in his opinion, claimant had “a long history of thoracic spine symptoms” and “multilevel thoracic spondylosis and degenerative disc disease.” He agreed that the conditions had developed gradually over time and were unrelated “to a specific identifiable event or injury.” Arbeene did not object, however, to the attorney’s use of “disc protrusions” throughout the letter.
Rokosz, a neurosurgeon with whom claimant consulted shortly after the MRI, reported that the MRI shows “very mild disc degeneration” with a “slight bulge” at T8 and a “bulge” at T7-8. He “explained to the patient that it can be very difficult to know where someone’s pain is coming from, especially in the thoracic spine,” and he recommended “chiropractic evaluation as they are quite adept at evaluating and treating rib abnormalities,” which he believed to be partly causing claimant’s pain.
The other two doctors used the terms “bulge” and “protrusion” interchangeably. They also recognized that claimant has degenerative changes in the thoracic spine yet described her condition as work related. Bolstad opined that, in addition to Arbeene’s diagnoses of thoracic strain and spondylosis, she would add “[m]ild central disc protrusion at T6-7 with mild cord compression, moderate right paracentral
Russo, a pain specialist, reported that the MRI showed “disc protrusion at T6-7, T7-8, and T8-9.” After examining claimant, Russo diagnosed “[tjhoracic spondylo-sis [with] multilevel disc bulges at T7-8, T8-9.” Russo later wrote that claimant had “disc bulges/protrusions” at “these levels” and that she had “multi-disc disease,” but that her “pain, spasm, and symptom interference is in excess of what would be expected [from] solely a pre-existing degenerative process.”
The ALJ concluded that Arbeene’s opinion was “the most detailed, well reasoned and persuasive on the threshold issue of the ‘existence’ of the claimed disc protrusion conditions.” The ALJ explained that, although Bolstad and Russo had diagnosed “protrusions,” or “bulges/ protrusions,” and had at times used the terms interchangeably, Arbeene had explained the physical details that characterize different types of disc abnormalities. The ALJ emphasized that Rokosz had described claimant’s condition as “bulges,” and the ALJ discounted Russo’s opinion due to his unexplained shift in diagnosis from “bulges” to “bulges/ protrusions.”
On appeal to the Workers’ Compensation Board, in addition to adopting the ALJ’s findings and conclusions regarding the existence of the claimed “disc protrusions” condition, the board explained that it was persuaded by “the well-reasoned opinion of Dr. Arbeene” because he “had a complete and accurate history of claimant’s condition, including thoracic symptoms that preexisted the compensa-ble injury,” and had “engaged in a thorough weighing of the potential causes of the claimed conditions.” By contrast, the board viewed Russo’s and Bolstad’s reports as “not demonstrating] the same level of awareness of the preexisting
On judicial review, claimant contends that the board “erred in distinguishing between the terms disc ‘protrusion’ and disc ‘bulge.’” Relying on cases in which we have rejected the need for “magic words” to prove the compensa-bility of workers’ compensation claims, claimant argues that she proved that she suffers from a thoracic disc condition that was not part of the original acceptance and that she did not need to prove a specific name or diagnosis for that condition in order to prove that it is a new or omitted condition. Employer responds that the difference between the diagnosis of disc bulges and the diagnosis of disc protrusions is not just a matter of labeling claimant’s condition but is, instead, a factual distinction that determines whether claimant suffers from the condition for which she claimed compensation. Both parties are correct to an extent.
Claimant is correct that, for a new or omitted condition claim, ORS 656.262(7)(a) and ORS 656.267 require the claimant to give notice of conditions for which compensation is sought but “do not require notice of diagnoses” Labor Ready v. Mogensen, 275 Or App 491, 498, 365 P3d 623 (2015), rev den, 360 Or 235 (2016) (emphasis in original). However, whether a condition is encompassed within the scope of the new or omitted condition claim is a question of fact. Id. at 497. Moreover, whatever the diagnosis, the claimant bears the burden of proving by a preponderance of the evidence that a claimed new or omitted condition exists, and proving the existence of new symptoms is not enough. De Los-Santos v. Si Pac Enterprises, Inc., 278 Or App 254, 258, 373 P3d 1274, rev den, 360 Or 422 (2016).
Our decisions in De Los-Santos and Labor Ready provide useful guidance for our review of the board’s order in this case. The claimant in De Los-Santos had an accepted claim for a back strain and then filed a new or omitted condition claim for “radiculopathy/radiculitis,” which the employer denied. 278 Or App at 255-56. The board found that the claimant had failed to prove that the claimed condition existed, and the claimant argued that the board’s conclusion was contrary to our cases that have allowed
The claimant in Labor Ready filed a new or omitted condition claim for “complex regional pain syndrome” (CRPS I) based on continuing pain in his finger, part of which had been severed in a previously accepted workplace injury. 275 Or App at 492. The employer denied the claim, and, after subsequent examinations, the parties agreed that the correct diagnosis for the claimant’s condition was “CRPS II,” which involved nerve damage, unlike CRPS I. Id. at 493-94. The employer argued to the board that it “lacked authority to address the compensability of CRPS II” because that condition was encompassed by neither the claim itself nor the employer’s denial. Id. at 494-95. The board disagreed, concluding that the original claim for “complex regional pain syndrome” was broad enough to encompass the claimant’s eventual diagnosis of CRPS II. Id. at 495-96.
On review, we affirmed the board. We explained that the scope of a claim and of a denial is a factual determination reviewable for substantial evidence, and that the board’s findings were supported by substantial evidence. See id. at 497-98. We noted specifically that “a reasonable interpretation of the medical record is that CRPS II is a form of ‘complex regional pain syndrome,”’ and we concluded that, on the record presented, “the board could find that the source of claimant’s symptoms, ultimately diagnosed as CRPS II, is the same condition for which claimant originally sought acceptance.” Id. at 498-99.
We review those findings to determine whether they are supported by substantial evidence, which means that “the record, viewed as a whole, permits a reasonable person to find as the board did, in the light of supporting and contrary evidence.” SAIF v. Williams, 281 Or App 542, 543, 381 P3d 955 (2016) (internal quotation marks omitted). Moreover, in reviewing the board’s “evaluation of expert opinions, we do not substitute our judgment for that of the board; rather, we determine whether the board’s evaluation of that evidence was reasonable.” Id. at 548 (internal quotation marks omitted). Applying that standard, we affirm.
The board primarily relied on the opinion of Arbeene to support its findings that a condition of disc “bulges” is distinct from a condition of disc “protrusions,” and that claimant suffers from disc “bulges,” not “protrusions.” The board’s findings are a reasonable interpretation of the medical evidence. Although Arbeene was the only doctor to make the distinction, the board accepted his opinion because he persuasively explained that bulges describe a degenerative disc pathology while protrusions describe a pathology that occurs
Affirmed.
Given our affirmance of the board’s decision that claimant did not prove the existence of the claimed condition, we do not reach claimant’s challenge to an alternative holding of the board that, “ [e]ven assuming that claimant established the existence of the claimed conditions,” she did not prove that the conditions were compensable.
Because the hoard adopted the ALJ’s findings, we refer to all findings as those of the board.
Neither party addresses whether the claim was for a “new” condition or for an “omitted” condition, nor does either party argue that the distinction would affect our analysis in this case.
Employer later amended its denial of the protrusions claim to clarify that it was denying that the condition was compensable under an occupational disease theory as well as under an injury theory. However, claimant did not contend below or on judicial review that her disc condition is compensable as an occupational disease, and we do not address the amended denial.
The transcriber used “disk” rather than “disc”; for consistency, we continue to use “disc” without noting the alteration in each instance.
We note that, after the board’s order in this case, claimant filed a claim for a new or omitted condition of “disc bulges.” Relying on the evidence that the 2012 work injury caused disability and a need for treatment of that condition, the board ordered employer to accept that condition. See Barbara J. DeBoard, 67 Van Natta 909 (2015) (currently under review by Court of Appeals, case number A159640).
Reference
- Full Case Name
- In the Matter of the Compensation of Barbara J. DeBoard, Barbara J. DeBOARD, aka Barbie J. DeBoard v. FRED MEYER
- Cited By
- 3 cases
- Status
- Published