70 Van Natta 316 (2018)
In the Matter of the Compensation of SAMUEL W. WARFIELD, Claimant
WCB Nos. 15-04732, 15-03364
Oregon Worker Compensation
March 5, 2018
Schoenfeld & Schoenfeld, Claimant Attorneys
Sather
Byerly & Holloway, Defense Attorneys
Reviewing Panel: Members Curey, Lanning, and Wold.
ORDER ON REVIEW
The
self-insured employer requests review of that portion of
Administrative Law Judge (ALJ) Otto’s order that set
aside its denial of claimant’s new/omitted medical
condition claim for a cervical (C5-7) disc injury and left C7
radiculitis. Claimant cross-requests review of those portions
of the ALJ’s order that: (1) did not award temporary
disability benefits from October 7, 2015 through October 28,
2015; (2) declined to award a penalty and penalty-related
attorney fee for the employer’s allegedly unreasonable
claim processing; and (3) awarded a $12,000 attorney fee
regarding claimant’s counsel’s services at the
hearing level for finally prevailing over the
employer’s denial. On review, the issues are
compensability, temporary disability, penalties, and attorney
fees.
We
adopt and affirm the ALJ’s order with the following
supplementation to address the compensability of the
new/omitted medical condition claim.[1]
On
February 19, 2015, claimant, a machine operator, developed
left shoulder pain while lifting a tool. (Exs. 2, 6-1). He
treated for a rotator cuff injury. (Exs. 6, 10). On March 24,
2015, Dr. Cribbs determined that claimant’s condition
was medically stationary and released him for full duty
without limitations. (Ex. 14-3).
The
employer accepted a disabling left rotator cuff strain. (Ex.
15). An April 27, 2015 Notice of Closure did not award
permanent impairment. (Ex. 16).
[70 Van
Natta 317] Subsequently, while working on June 22, 2015,
claimant developed “tingling,” radiating from his
neck to his left arm. (Ex. 18-1). On July 1, 2015, Dr. Cribbs
authorized claimant to be off work for an aggravated left
shoulder strain. (Ex. 19).
A July
1, 2015 cervical MRI showed multiple level disc and facet
degeneration and stenosis, with severe left and moderately
severe right C6-7 foraminal stenosis and left C7 nerve root
impingement. (Ex. 20A).
On
August 20, 2015, Dr. Callahan, claimant’s primary care
physician, assessed cervical stenosis, radiculopathy, and
left shoulder pain due to a combination of acute and chronic
injury and degeneration, likely work-related. (Ex. 26-2).
On
October 7, 2015, Dr. Brett, a neurosurgeon, recommended a
cervical discectomy and C5-7 fusion. (Ex. 29). An 827 form
was submitted to the employer, requesting the acceptance of a
cervical (C5-7) disc injury and left C7 radiculitis as
new/omitted medical conditions. (Ex. 28).
On
November 12, 2015, Dr. Jones, an orthopedic surgeon,
performed an examination at the employer’s request. Dr.
Jones diagnosed a possible C5-7 radiculopathy and opined that
claimant’s condition required further work-up, due in
major part to preexisting degenerative change. (Ex. 38-7).
On
December 4, 2015, Dr. Brett performed a discectomy and C5-7
fusion. During the surgery, he observed “a combination
of soft disc protrusion and spondylotic disease, particularly
on the left at C6-7.” (Ex. 31-1). Finding the annular
injury and disc protrusion to be consistent with the date and
mechanism of the February 2015 work injury, he concluded that
the injury was the major contributing factor to
claimant’s preoperative condition and need for surgery.
(Ex. 32).
On
December 4, 2015, the employer denied claimant’s
new/omitted medical condition claim. (Ex. 31 A). Claimant
requested a hearing.
On
March 2, 2016, Dr. Rosenbaum, a neurosurgeon who performed an
examination at the employer’s request, diagnosed
preexisting cervical spondylosis (degenerative arthritis) and
left cervical radiculopathy. (Ex. 37-6, -8). Assuming [70 Van
Natta 318] the accuracy of claimant’s history,[2] he opined
that the February 19, 2015 injury was a material contributing
cause of the cervical radiculopathy and disability/need for
treatment. (Ex. 37-7, -8).
Claimant
testified that he had a “zinger” down the back of
his neck and into his left arm when he lifted a tool on
February 19, 2015. (Tr. 14, 15). The neck
“zinger” came and went in a brief period, but the
left shoulder pain continued. (Tr. 16, 17, 21). Then, in June
2015, while he was pushing or pulling a tool, he experienced
another “zinger” that flared-up his shoulder
pain. (Tr. 21, 22).
In a
“post-hearing” deposition, Dr. Brett maintained
that the February 19, 2015 work event was the major
contributing factor to claimant’s combined condition,
symptoms, and need for treatment. (Ex. 41-38). He opined that
claimant had spondylotic disease (i.e.,
“degenerative disc disease”) and an annular tear
and disc protrusion (as a result of the work event), which
combined to cause nerve impingement,
radiculitis/radiculopathy, and left arm complaints. (Ex.
41-31, -34). Dr. Brett did not consider claimant’s
cervical facet joint arthritis to be symptomatic or involved
in his nerve impingement or symptoms. (Ex. 41-32). Finally,
Dr. Brett opined that claimant had a symptomatic aggravation
in June 2015. (Ex. 41-24, -37, -38).
Relying
on claimant’s testimony and the opinions of Drs. Brett,
Callahan, and Rosenbaum, the ALJ concluded that the February
19, 2015 injury was a material contributing cause of
claimant’s need for treatment/disability for his
cervical injury and radiculitis/radiculopathy. The ALJ...
