In the Matter of the Compensation of BRIGIDA H. PENALOZA, Claimant
WCB Nos. 16-02730, 15-05334
Oregon Worker Compensation
December 7, 2017
Alvey
Law Group, Claimant Attorneys
Sather
Byerly & Holloway, Defense Attorneys
Reviewing Panel: Members Lanning and Curey.
ORDER ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ)
Pardington’s order that: (1) upheld the self-insured
employer’s denial of claimant’s new/omitted
medical condition for a right shoulder condition; and (2)
determined that a proposed right shoulder surgery was not
related to claimant’s accepted right shoulder
condition. On review, the issues are compensability and
medical services.[1]
We
adopt and affirm the ALJ’s order with the following
supplementation regarding the medical services issue.
The ALJ
analyzed whether the proposed right shoulder surgery was
materially related to the “work-related injury
incident” under the method described in SAIF v.
Carlos-Macias, 262 Or.App. 629, 637 (2014). After doing
so, the ALJ determined that Dr. Hanley’s opinion
relating the need for right shoulder surgery to the work
injury incident contained inconsistencies rendering his
opinion unpersuasive.
Subsequent
to the ALJ’s order, however, the Carlos-Macias
analysis has been superseded by the analysis expressed in
Garcia-Solis v. Farmers Ins. Co., 288 Or.App. 1, 5
(2017). Under Garcia-Solis, the phrase
“compensable injury” as used in ORS 656.245(1)
refers to an “accepted condition.” 288 Or.App. at
5. Therefore, consistent with the Garcia-Solis
rationale, we determine whether claimant’s proposed
rotator cuff surgery was for a condition caused in material
part by her accepted right shoulder infraspinatus
tear.[2] (Ex. 68). Based on the following
reasoning, the record does not satisfy that requisite
standard.
Dr.
Hanley opined that claimant had the “same tear”
despite the interpretation of Dr. Brenneke and the
radiologist, who concluded that claimant had a new
supraspinatus tear based on comparison of the July 2013 MRI
with the...
