54 Van Natta 19 (2002). MARTIN N. MONTES, Claimant.

Case DateJanuary 10, 2002
CourtOregon
Oregon Worker Compensation 2002. 54 Van Natta 19 (2002). MARTIN N. MONTES, Claimant 19In the Matter of the Compensation of MARTIN N. MONTES, ClaimantWCB Case No. 00-07376ORDER ON REVIEWWillner Wren Hill and Uren, Claimant AttorneysVavrosky Maccoll Olson Et Al, Defense AttorneysReviewing Panel: Members Haynes, Bock, and Biehl.Claimant requests review of Administrative Law Judge (ALJ) Peterson's order that upheld the insurer's denial of claimant's injury claim for a right index finger condition. On review, the issue is compensability. We adopt and affirm the ALJ's order with the following supplementation. Claimant suffered a crush injury to his right index finger on July 28, 2000, when his hand got caught between a heavy section of rolling pipe and a wooden wedge. (Ex. 4-1). The insurer denied the claim on the basis that claimant's consumption of alcohol was the major contributing cause of his injury. (Ex. 11). See ORS 656.005(7)(b)(c). Claimant requested a hearing. The ALJ, relying on the opinion of Dr. Burton (insurer-arranged record reviewer) determined that, at the time of the injury, claimant was impaired by alcohol, and that the impairment was the major contributing cause of his injury. Consequently, the ALJ upheld the denial. The parties agree that claimant has established a prima facie case of compensability. Consequently, to defeat a finding of compensability under ORS 656.005(7)(b)(C), the insurer must prove, by a preponderance of the evidence, that claimant's "consumption of alcoholic beverages" was the major contributing cause of the injury. Erika W. Ortman, 51 Van Natta 2012 (1999). The cause and effect of the use of alcohol or controlled substances is a medical question requiring expert medical opinion. See Uris v. CompensationDepartment, 247 Or 420 (1967); Ortman, 51 Van Natta at 2012. The "major contributing cause" is the cause that contributes more to claimant's injuries than all other factors combined. See, e.g., McGarrah v. SAIF, 296 Or 145, 146 (1983). Dr. Burton was the only medical expert that offered an opinion regarding claimant's impairment. Basing his opinion on a urine test showing a urine alcohol 54 Van Natta 19 (2002)20concentration of 0.06 gm/dl taken about 5 hours after the injury, Dr. Burton opined that claimant was impaired from alcohol consumption at the time of his injury. (Ex. 15-3...

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