Gasperino v. Gasperino6/10/1992
COURT OF APPEALS OF OREGON
CA No. A70011
1992.OR.41385 ; 833 P.2d 1292; 113 Or. App. 411
June 10, 1992
IN THE MATTER OF THE COMPENSATION OF JULIE GASPERINO, CLAIMANT. ALBANY GENERAL HOSPITAL AND FUTURE HEALTH, INC., PETITIONERS,
v.
JULIE GASPERINO, RESPONDENT
Judicial Review from Workers' Compensation Board. WCB No. 90-10991.
Adam T. Stamper, Medford, argued the cause for petitioners. With him on the brief was Cowling & Heysell, Medford.
Karen M. Werner, Eugene, argued the cause for respondent. With her on the brief were James C. Egan and Emmons, Kropp, Kryger, Alexander & Egan, P.C., Albany.
Warren, Presiding Judge, and Riggs and Edmonds, Judges.
Warren
Employer seeks review of a Workers' Compensation Board order that affirmed the referee's order setting aside employer's denial of claimant's claim for thoracic outlet syndrome (TOS). We affirm.
In January, 1989, while claimant was at work, she slipped and fell backward with her arms outstretched behind her, landing on her buttocks and low back. She sought treatment from her family physician, who diagnosed right wrist and shoulder strain, sacroiliac strain and cervical strain. Employer accepted the claim.
Over the next few months, claimant developed numbness and tingling down her arms into her hands. By July, 1989, she had lost grip strength and had experienced decreased range of motion in both wrists. She was referred to various doctors, including specialists, who gave various diagnoses for her condition. In 1990, a TOS specialist found evidence of TOS, which he concluded was materially caused by the January, 1989, fall. He performed surgery in June and July, 1990, which relieved claimant's symptoms. She filed a claim for TOS, which employer denied. At the hearing, the referee found that the 1989 fall materially contributed to claimant's condition, and the Board affirmed.
Employer argues that the Board erred by applying the material contributing cause test to determine whether the claim is compensable. It asserts that, under the 1990 amendment to ORS 656.005(7)(a)(A), the TOS is a consequence of the compensable injury and, therefore, she must prove that her compensable injury was the major contributing cause of the TOS. Claimant responds that her condition is not a consequence of the compensable injury, but is part of it, because the condition is directly related to the slip and fall. She argues that the legislature did not change the material contributing cause standard for determining compensability
of a condition or need for medical treatment that is directly related to the industrial accident.
The Board considered ORS 656.005(7)(a), as amended in 1990:
"A 'compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:
"(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.
"(B) If a compensable injury combines with a preexisting diseas
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