54 Van Natta 233 (2002). KEVIN J. GIBSON, Claimant.

• Case Date: April 24, 2002
• Court: Oregon

Oregon Worker Compensation 2002. 54 Van Natta 233 (2002). KEVIN J. GIBSON, Claimant 233In the Matter of the Compensation of KEVIN J. GIBSON, ClaimantWCB Case No. 01-03073ORDER ON REVIEWPatrick K MaCkin, Claimant AttorneysJames B Northrop, SAIF Legal, Defense AttorneysReviewing Panel: Members Biehl, Phillips Polich, and Bock.1The SAIF Corporation requests review of that portion of Administrative Law Judge (ALJ) Kekauoha's order that set aside its denial of claimant's current combined low back condition. Claimant cross-requests review of that portion of the ALJ's order that declined to assess penalties for an allegedly unreasonable denial. On review, the issues are compensability and penalties. We adopt and affirm the ALJ's order with the following supplementation. The ALJ set aside SAIF's denial of claimant's current "combined" low back condition based on the opinion of claimant's treating physician, Dr. Takacs. On review, SAIF first contends that Dr. Takacs' opinion is unpersuasive because she failed to explain a change in her opinion. See Kelso v. City of Salem, 87 Or App 630 (1987) (a physician's change of opinion, if adequately explained, does not necessarily render the opinion unpersuasive). We disagree. Dr. Takacs has been claimant's treating physician since 1991. (Ex. 13). On December 28, 2000, Dr. Takacs wrote that claimant's October 20, 2000 compensable injury had caused only a worsening of his preexisting lumbar strain condition (from 1991). (Ex. 54). Dr. Takacs later stated that, while claimant's October 2000 injury was the cause of his need for treatment and inability to return to work, his "major problem" from a "medical," as opposed to "legal" point of view, was his preexisting condition. (Ex. 61-2). However, Dr. Takacs then agreed that the major cause of claimant's need for treatment, compared to his preexisting conditions, was his October 2000 injury. (Ex. 73). Because the medical evidence is that claimant's October 2000 compensable injury has "combined with" one or more preexisting conditions, he must prove that 1 After consultation with the Department of Justice, this Board has chosen to exercise its right to issue orders as a panel of three pursuant to ORS 656.718(2) and (3). 54 Van Natta 233 (2002)234his injury remains the major contributing cause of his disability or need for treatment for the combined...