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...
