54 Van Natta 236 (2002). TAMMY L. SMITH, Claimant.

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

Oregon Worker Compensation 2002. 54 Van Natta 236 (2002). TAMMY L. SMITH, Claimant 236In the Matter of the Compensation of TAMMY L. SMITH, ClaimantWCB Case No. 01-03995, 00-08476ORDER ON REVIEWCoughlin Leuenberger and Moon PC, Claimant AttorneysJohnson Nyburg and Andersen, Defense Attorneys Bruce A Bornholdt, SAIF Legal, Defense AttorneysReviewing Panel: Members Biehl, Bock, and Phillips Polich.1The SAIF Corporation requests review of Administrative Law Judge (ALJ) Kekauoha's order that: (1) set aside its denial of claimant's injury claim for her current low back condition; and (2) assessed SAIF a penalty for an allegedly unreasonable denial. On review, the issues are compensability and penalties. We reverse in part and affirm in part. FINDINGS OF FACT We adopt the ALJ's Findings of Fact. CONCLUSIONS OF LAW AND OPINION The ALJ found that claimant's current low back condition was compensable. Relying on the opinion of Dr Smith (claimant's treating neurosurgeon), the ALJ reasoned that claimant's August 2000 work incident was the major contributing cause of her need for treatment or disability for her L5-S1 disk herniation. SAIF contends that claimant suffered from preexisting degenerative disk disease which combined with her August 2000 injury to cause a disability and need for treatment. An insurer-arranged medical examiner, neurologist Dr. Thompson, opined that claimant's preexisting condition was the major contributing cause of her low back condition. SAIF further asserts that the opinion of claimant's treating neurosurgeon, Dr. Smith, was unreliable as it was based upon an inaccurate medical history and was expressed in conclusory terms. 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 236 (2002)237Assuming for the sake of argument that Dr. Smith's opinion is not entitled to deference as the treating physician, we still agree with the ALJ that the opinion of Dr. Smith is the most persuasive. In reaching this conclusion, we consider Dr. Smith's opinion thorough, well reasoned and based upon the most complete information. See Somers v. SAIF, 77 Or App 259, 263 (1985). Dr. Smith examined claimant, reviewed x-rays and a MRI, diagnosed her condition as L5-S1 disk extrusion, and performed...