In re Compensation of Zehrt-Shay, 043019 ORWC, 15-04673

Docket Nº:WCB 15-04673
Case Date:April 30, 2019
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
          Scott M Mcnutt Sr, Claimant Attorneys           MacColl Busch Sato PC, Defense Attorneys           Reviewing Panel: Members Ousey and Woodford.           ORDER ON REVIEW          The 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.[1] On review, the issue is compensability. We affirm.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact” with the following summary and supplementation.          On July 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).          In 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. (Id.)          On March 10, 2009, Dr. Barbour performed a closing examination. (Ex. 39).          In 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).          [71 Van 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 (2012).          On May 23, 2012, Dr. McLean, an orthopedic surgeon, performed a right total knee arthroplasty (knee replacement surgery). (Ex. 101).          In July 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. 154).          On July 2, 2013, a Notice of Closure did not award additional permanent impairment. (Ex. 174).          On July 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).          On 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.”[2] (Ex. 180).          In July 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...

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