In the Matter of the Compensation of TRACY A. JONES, Claimant
WCB No. 15-01436
Oregon Worker Compensation
June 5, 2017
Edward
J Hill, Claimant Attorneys
Reinisch Wilson Weier, Defense Attorneys
Reviewing Panel: Members Lanning and Curey.[1]
ORDER ON RECONSIDERATION
On
March 31, 2017, we abated our March 15, 2017 order that
affirmed an Administrative Law Judge’s (ALJ’s)
order that set aside the self-insured employer’s
denials of claimant’s current combined left shoulder
condition. We took this action in response to the
parties’ request to address the effect of the Supreme
Court’s decision in Brown v. SAIF, 361 Or. 241
(March 30, 2017). Having received the parties’
supplemental arguments, we proceed with our reconsideration.
After
further consideration in light of the recent Brown
decision, we continue to find that the employer’s
“ceases” denial should be set aside. We reason as
follows.
In
Brown, the court concluded that the correct inquiry
under ORS 656.262(6)(c) was whether the previously accepted
condition (rather than the work-related injury incident)
remained the major contributing cause of the claimant’s
disability or need for treatment of the combined condition.
361 Or. at 282. Therefore, a carrier may deny the accepted
combined condition if the “otherwise compensable
injury” (i.e., the medical condition that the
carrier previously accepted) ceases to be the major
contributing cause of the combined condition. Id.
The
word “ceases” presumes a change in the
worker’s condition or circumstances such that the
“otherwise compensable injury” is no longer the
major contributing cause of the disability or need for
treatment of the combined condition. Wal-Mart Stores,
Inc. v. Young, 219 Or.App. 410, 419 (2008). Thus, in
accordance with the Brown rationale, to support its
denial under ORS 656.262(6)(c), the employer must prove a
change in claimant’s condition or circumstances such
that the previously accepted left shoulder trapezius strain
ceased to be the major contributing cause of the disability
or need for treatment for the combined left shoulder
condition. ORS 656.262(6)(c); ORS 656.266(2)(a);
Brown, 361 Or. at 282.
The
causation issue...