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...