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Multifoods Specialty Distribution v. McAtee12/29/1999
Judicial Review from Workers' Compensation Board.
Argued and submitted July 14, 1999.
BREWER, J.
Reversed.
Employer seeks review of a Workers' Compensation Board order overturning its denial of claimant's combined condition. We review for substantial evidence and errors of law, ORS 656.298(7), ORS 183.482(7), (8), and reverse.
In 1981, claimant suffered a compensable low-back injury while working for Papa John's Sandwich Co. Wausau Insurance Co. accepted the claim, and claimant underwent a lumbar laminectomy and discectomy at L5-S1. The post-operative diagnosis was a right side herniated disc at that location. The claim was closed in 1982 with a determination order that awarded claimant 20 percent unscheduled disability and 5 percent right leg disability. The claim was re-opened in 1983. The physicians who treated claimant at that time diagnosed a worsening of claimant's low-back condition with symptoms on both sides of the back, including recurrent disc herniation at L5-S1 and degenerative disc disease. In August 1983, Wausau accepted the reopened claim as an aggravation, and claimant had a second surgery at L4-5 and L5-S1, including a lumbar laminectomy, two-level bilateral discectomy, and fusion of the iliac bone. The claim was closed again with claimant receiving a further award of permanent partial disability arising from the second surgery.
Claimant began working for Multifoods Specialty Distribution (employer) thereafter. He experienced no significant recurring low-back problems until November 1996, when he slipped at work and suffered an acute low-back strain. X-rays taken at the time disclosed severe post-operative and degenerative changes at L4-5 and L5-S1 and mild to moderate degenerative changes at other lumbar levels. Claimant's physician concluded that the November 1996 strain combined with claimant's pre-existing low-back condition and required treatment.
On January 30, 1997, employer accepted the 1996 injury as "acute lumbar strain (combined condition)." On January 31, employer issued a denial pursuant to ORS 656.262(7)(b) stating " urrent medical evidence indicates your pre-existing condition is now the major contributing cause for medical treatment." Employer closed the claim with an award of benefits through January 31, 1997. Claimant requested a hearing, and an administrative law judge (ALJ) upheld the denial. Claimant then appealed to the Board. The Board reversed the ALJ on the ground that, although the new injury was no longer the major contributing cause of the need for treatment, employer remained responsible for the pre-existing component of claimant's combined condition, because responsibility for the pre-existing condition had shifted to employer under ORS 656.308(1). This petition for review followed.
We begin our analysis by examining the statutes that interact in the resolution of this case.
ORS 656.005(7)(a)(B) provides:
"If an otherwise compensable injury combines at any time with a pre-existing condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."
It is undisputed that claimant's November 6, 1996, strain was a compensable injury and that it combined with his pre-existing compensable degenerative back condition to require treatment. It is also undisputed that, until January 30, 1997, the November 1996 injury was the major contributing cause of the co
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