71 Van Natta 477 (2019)
In the Matter of the Compensation of CLARA A. ZEHRT-SHAY, DCD, Claimant
WCB No. 15-04673
Oregon Worker Compensation
April 30, 2019
M Mcnutt Sr, Claimant Attorneys
MacColl Busch Sato PC, Defense Attorneys
Reviewing Panel: Members Ousey and Woodford.
ORDER ON REVIEW
self-insured employer requests review of Administrative Law
Judge (ALJ) Poland’s order that set aside its denial of
claimant’s combined right knee condition. On review,
the issue is compensability. We affirm.
adopt the ALJ’s “Findings of Fact” with the
following summary and supplementation.
14, 2008, the worker sustained a compensable right knee
injury. (Ex. 16). Her claim was accepted for right knee
medial and lateral meniscus tears and a right knee anterior
cruciate ligament (ACL) tear. (Ex. 22).
September 2008, Dr. Barbour, an orthopedic surgeon, performed
a right ACL reconstruction, partial lateral meniscectomy, a
medial meniscectomy with removal of approximately 90 percent
of the posterior third of the medial meniscus, and debrided
the areas of chondromalacia on the patella, interochlear
groove, and medial and lateral femoral condyles. (Ex. 27). He
diagnosed a complete rupture of the ACL, tearing of the
posterior half of the medial meniscus, minor tearing of the
middle part of the lateral meniscus, and preexisting grade 3
chondromalacia on the lateral femoral condyles.
March 10, 2009, Dr. Barbour performed a closing examination.
November 2009, a Notice of Closure awarded 19 percent
permanent impairment. (Ex. 63). In February 2010, an Order on
Reconsideration awarded 20 percent permanent impairment based
on a medical arbiter examination conducted by Dr. James, an
orthopedic surgeon. (Exs. 66, 68).
Natta 478] On May 21, 2012, we affirmed an ALJ’s order
that set aside the employer’s denial of the
worker’s new/omitted medical condition claim for right
knee chondromalacia. In doing so, we found that the record
established that the condition was compensable as a combined
condition. Clara A. Zehrt-Shay, 64 Van Natta 961
23, 2012, Dr. McLean, an orthopedic surgeon, performed a
right total knee arthroplasty (knee replacement surgery).
2012, the employer modified its acceptance to include
“right knee medial meniscus tear, right knee lateral
meniscus tear, and right ACL tear combined with pre-existing,
noncompensable, chondromalacia of the right knee.” (Ex.
2, 2013, a Notice of Closure did not award additional
permanent impairment. (Ex. 174).
18, 2013, the worker began to have symptoms attributed to a
worsening of her accepted conditions. (Exs. 175, 179). Dr.
Vallier, an orthopedic surgeon, noted that the worker had
underwent a knee replacement with good pain relief and
increased function for the first three or four months and
developed mechanical symptoms (that had worsened). (Ex.
175-1). Dr. Vallier submitted an 827 Form for an aggravation,
and also provided a “status report” diagnosing a
right knee replacement with locking and restricted the worker
from work due to a pending surgery. (Exs. 176, 177).
September 18, 2013, the employer accepted an aggravation
claim of “right knee medial meniscus tear, right knee
lateral meniscus tear, and right ACL tear combined with
pre-existing, noncompensable, chondromalacia of the right
knee.” (Ex. 180).
2015, Dr. Fuller, an orthopedic surgeon who performed a
record review at the employer’s request, opined that
the preexisting chondromalacia was the major contributing...