In re Compensation of Cutler, 042319 ORWC, 17-04695

Case DateApril 23, 2019
CourtOregon
71 Van Natta 432 (2019)
In the Matter of the Compensation of CATHERINE E. CUTLER, Claimant
WCB No. 17-04695
Oregon Worker Compensation
April 23, 2019
          Julene M Quinn LLC, Claimant Attorneys           MacColl Busch Sato PC, Defense Attorneys           Reviewing Panel: Members Ousey and Woodford.           ORDER ON REVIEW          The insurer requests review of Administrative Law Judge (ALJ) Fulsher’s order that set aside its denial of claimant’s new/omitted medical condition claim for a C5-6 disc protrusion and a C6-7 disc herniation. On review, the issue is compensability. We affirm.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact.”          CONCLUSIONS OF LAW AND OPINION          In setting aside the insurer’s denial, the ALJ determined that the opinion of Dr. Brett, claimant’s treating neurosurgeon, persuasively established that claimant’s work-related motor vehicle accident (MVA) was a material contributing cause of her disability/need for treatment of the claimed conditions. The ALJ then considered the insurer’s “combined condition” defense and determined that the medical evidence did not establish the existence of a combined condition.          On review, the insurer contends that the opinions of Drs. Ward and Morgan persuasively establish a combined condition and that claimant’s “otherwise compensable injury” was never the major contributing cause of her disability/need for treatment of the combined condition. For the following reasons, we affirm the ALJ’s order.          For the reasons expressed in the ALJ’s order, we are persuaded that claimant’s work-related MVA was a material contributing cause of her disability/need for treatment for the claimed conditions.[1] ORS 656.005(7)(a). [71 Van Natta 433] Because claimant has established an “otherwise compensable injury,” the burden of proof shifts to the insurer to establish the “combined condition” requirements. See ORS 656.005(7)(a)(B); ORS 656.266(2)(a). Therefore, the insurer must prove that a statutory preexisting condition combined with the “otherwise compensable injury,” and that the work injury was not the major contributing cause of the disability/need for treatment for the combined condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a); SAIF v. Kollias, 233 Or.App. 499, 505 (2010) (the carrier’s burden under ORS 656.266(2)(a) encompasses proof that: (1) the claimant suffers from a statutory “preexisting condition”; (2) the claimant’s condition is a combined condition; and (3) the “otherwise compensable injury” is not the major contributing cause of the disability/need for treatment of the combined condition); Jack G. Scoggins, 56 Van Natta 2534, 2535 (2004).          The assessment of the major contributing cause of the...

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