In re Compensation of Brady, 041119 ORWC, 17-00869

Docket Nº:WCB 17-04914, 17-00869
Case Date:April 11, 2019
Court:Oregon
 
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71 Van Natta 393 (2019)
In the Matter of the Compensation of KATHLEEN I. BRADY, Claimant
WCB No. 17-04914, 17-00869
Oregon Worker Compensation
April 11, 2019
          Moore & Jensen, Claimant Attorneys           SAIF Legal Salem, Defense Attorneys           Reviewing Panel: Members Lanning and Woodford.           ORDER ON REVIEW          Claimant requests review of Administrative Law Judge (ALJ) Martha Brown’s order that: (1) upheld the SAIF Corporation’s denial of claimant’s new/omitted medical condition claim for a right rotator cuff tear; and (2) found that the medical services claim for a right shoulder arthroscopy was not compensable. On review, the issues are compensability and medical services. We reverse.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact.”          CONCLUSIONS OF LAW AND OPINION          The ALJ analyzed claimant’s new/omitted medical condition claim as a “combined condition.” See ORS 656.005(7)(a)(B); ORS 656.266(2)(a). In upholding SAIF’s denial of the claim, the ALJ concluded that the opinions of Drs. Kovacevic, Teed, and Vetter persuasively established that claimant’s work injury was not the “major contributing cause” of her disability/need for treatment for the combined condition. Id. Based on this finding, the ALJ also determined that SAIF was not responsible for the medical services claim.          On review, claimant contends that her right rotator cuff tear and her medical service claim are compensable. For the reasons explained below, we agree.[1]          To establish the compensability of a new/omitted medical condition, claimant must prove that the claimed condition exists and that the work injury was a material contributing cause of the disability or need for treatment of the condition. ORS 656.005(7)(a); ORS 656.266(1); Betty J. King, 58 Van Natta 977 [71 Van Natta 394] (2006); Maureen Y. Graves, 57 Van Natta 2380 (2005).[2] If claimant makes such a showing, and the record establishes that the otherwise compensable injury combined with a “preexisting condition” to cause or prolong disability or a need for treatment, SAIF must prove that the combined condition is not compensable by showing that the otherwise compensable injury was not the major contributing cause of the disability or need for treatment of the combined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a); Jack G Scoggins, 56 Van Natta 2534, 2535 (2004). Because SAIF has the burden of proof under ORS 656.266(2)(a), the medical evidence supporting its position must be persuasive. See Jason V. Skirving, 58 Van Natta 323, 324 (2006), aff’d without opinion, 210 Or.App. 467 (2007).          The assessment...

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