Stay Sharp – “Combined Condition” Analysis Continues to Evolve in Oregon Workers’ Compensation
by: Benjamin C. Debney
In 2017, the Oregon Supreme Court held that the proper statutory interpretation of a “combined condition” under ORS 656.005(7)(a)(B) is that: “an otherwise compensable injury” means the accepted condition(s) as opposed to an undefined, nebulous “work injury incident” as had been found by the Court of Appeals. Brown v. SAIF, 361 Or 241 (2017).
The Court of Appeals has since issued many opinions applying Brown, including two controversial 2020 cases, Robinette and Johnson, that are currently pending before the Supreme Court. https://www.linkedin.com/pulse/recent-developments-oregon-workers-compensation-benjamin-c-debney
This year, the Court of Appeals has issued three significant opinions addressing “combined conditions” discussed below.
Carrillo v. SAIF, 310 Or App 8, (March 17, 2021), rev den, 368 Or 560 (September 2021)
In Carrillo, the court held that symptoms of a preexisting condition and the preexisting condition itself cannot combined to give rise to a combined condition. Citing Hammond v. Liberty Northwest Ins. Corp., 296 Or App 241 (2019) (“two discrete, identifiable medical conditions” are not required to prove a combined condition when there is an initial claim and no condition has yet been accepted), the court stated that “a preexisting condition and its symptoms are not separate conditions.” Id. at 12.
The court distinguished Hammond, explaining that “initial claim itself can be a combined condition when a work incident, together with a preexisting condition, cause a separate injury.” Id. at 13. [In Hammond, the court found that, although walking at work was a material contributing (and precipitating) cause of claimant’s femur fracture, the preexisting condition was the major contributing of the fracture because the cancer caused the bone to weaken to where walking could cause it to fracture.]
Bottom Line Takeaway from Carrillo: a symptomatic flare up of a preexisting condition and the preexisting condition, as a matter of law, may not constitute a combined condition (and Hammond should not be interpreted otherwise).
Pedro v. SAIF, 313 Or App 34 (July 8, 2021)
In Pedro, the court reiterated the need for an employer to establish the combining for a combined condition defense. Specifically, the court stated that SAIF had the burden to prove by a preponderance of evidence: “(1) how the L4-5 disc protrusion combined with claimant’s preexisting arthritis to result in a disability or need for treatment; and, (2) that the L4-5 disc protrusion was not the major cause of the disability or need for treatment resulting from that combined condition.” Ultimately, because the medical evidence did not specifically speak to the combining of the new/omitted “L4-5 disc protrusion” with claimant’s preexisting arthritis, the court found a lack of substantial evidence and reversed.
Bottom Line Takeaway from Pedro: expert evidence relied upon to support a combined condition denial must specifically explain how the conditions combined to satisfy substantial evidence.
Sexton v. Sky Lakes Med. Ctr., 314 Or App 185 (September 1, 2021)
In Sexton, claimant requested an L4-5 disc bulge as a new/omitted medical condition. Employer denied the request on the basis that the L4-5 disc bulge was preexisting. Claimant asserted that: because the employer failed to accept the requested “otherwise compensable injury” of a disc bulge before issuing the combined condition denial, the denial was procedurally flawed. The court disagreed. Applying Hammond (which involved an initial accept/deny) in the new/omitted condition context, the court held that: “as a matter of law, employer was not procedurally required to issue an acceptance of the preexisting condition” to issue a combined condition denial because it would be “nonsensical” and “illogical.”
Bottom Line Takeaway from Sexton: if the defense of a new/omitted medical condition claim is that the claimed condition (doubling as the “otherwise compensable injury”) qualifies as a legally cognizable preexisting condition, then a combined condition denial may be issued without having accepted the claimed new/omitted medical condition as part of the combined condition.
For assistance on the above or any additional Oregon Workers’ Compensation issue, contact Benjamin Debney at (503) 224-8949 or [email protected]. See also https://wkmcblaw.com/person/benjamin-c-debney/