In re Compensation Dunn, 021921 ORWC, 15-01866

Case DateFebruary 19, 2021
CourtOregon
73 Van Natta 142 (2021)
In the Matter of the Compensation of DAVID DUNN, Claimant
WCB No. 15-01866
Oregon Worker Compensation
February 19, 2021
          Dale C Johnson, Claimant Attorneys SAIF Legal Salem, Defense Attorneys Reviewing Panel: Members Curey and Ousey.          ORDER ON REMAND          This matter is before the Board on remand from the Court of Appeals. SAIF v. Dunn, 297 Or.App. 206, rev den, 365 Or. 557 (2019). The court has reversed our prior order, David Dunn, 69 Van Natta, that affirmed an Administrative Law Judge’s (ALJ’s) order that set aside the SAIF Corporation’s denial of claimant’s occupational disease claim for a right foot condition. The court concluded that our finding, that claimant’s unfused apophysis did not itself actively contribute to his disability/need for treatment (and was, thus, not a “preexisting condition” that must be weighed as a cause under ORS 656.802(2)(e)), was not supported by substantial reasoning. In doing so, the court reasoned that Dr. Loveland’s opinion that claimant’s unfused apophysis was a “passive” contributor to his claimed apophysitis appeared to be inconsistent with the physician’s description of the mechanical cause of the apophysitis/ inflammation. Consequently, the court has remanded for reconsideration to resolve this apparent inconsistency and apply the correct legal standard to an evaluation of the cause of claimant’s right foot apophysitis, for which he has filed an occupational disease claim.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact,” as supplemented in our prior order and as summarized below.          In February 2015, claimant treated with Dr. Loveland, a podiatrist and the attending physician. (Ex. 5). Claimant reported at least 10 miles of daily walking at work in a hospital setting, and presented a two-month history of right fifth metatarsal pain. (Id.) Dr. Loveland diagnosed a fracture of the right styloid process. (Id.)          In March 2015, claimant completed an 801 form for a right foot condition. (Ex. 8).          [73 Van Natta 143] In April 2015, Dr. Fellars, an orthopedic surgeon, examined claimant at SAIF’s request. (Ex. 9). Dr. Fellars reviewed the medical record and opined that claimant likely had a developmental abnormality such as an unfused apophysis, which he considered a normal variant. (Ex. 9-4, -5, -7).          In reaching this conclusion, Dr. Fellars explained that claimant had a “fibrocartilaginous attachment between the bone * * * at the base of the 5th metatarsal and the metatarsal proper.” (Ex. 9-7). He noted that, in some individuals, “this can idiopathically become symptomatic due to the pull of the peroneous brevis.” (Id.) He further explained that apophysis appears in early adolescence and, instead of solidly ossifying, remains a fibrous union. (Id.) Individuals with this condition can often have pain due to microinstability at this fibrous articulation. (Id.) In weighing the relative contribution of claimant’s lifelong work activities against all other idiopathic and non-work causes, Dr. Fellars concluded that the condition was idiopathic and that non-work causes were the major contributing cause of claimant’s condition. (Ex. 9-8, -9).          Thereafter, SAIF denied claimant’s “right foot condition” claim, asserting that his work was not the major contributing cause of the condition. (Ex. 11).          In response to Dr. Fellars’s report, Dr. Loveland noted that claimant may have a genetic “predisposition” to a bilateral unfused apophysis bilaterally. (Ex. 12-2). Dr. Loveland diagnosed an injury affecting the bone or fibrous union between the apophysis and the fifth metatarsal. (Id.) She opined that claimant’s trauma was work related, whether classified as a fracture or an unfused apophysis. (Id.)          Subsequently, Dr. Fellars defined apophysis as a secondary center of ossification that usually develops at the site of a ligament or tendon attachment. (Ex. 13-1). He explained that claimant had a congenital unfused apophysis variant at the fifth metatarsal. (Id.) Dr. Fellars opined that claimant’s reported pain was...

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