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...