71 Van Natta 703 (2019)
In the Matter of the Compensation of WILLIAM T. OATES, Claimant
WCB No. 17-03500
Oregon Worker Compensation
July 3, 2019
Jodie
Phillips Polich, Claimant Attorneys
Tolleson Conratt Nielsen et al, Defense Attorneys
Reviewing Panel: Members Curey, Lanning, and Wold.
ORDER ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ)
Martha Brown's order that upheld the self-insured
employer's denial of claimant's injury claim for a
right foot/ankle condition. On review, the issue is
compensability. We reverse.
FINDINGS
OF FACT
We
adopt the ALJ's "Findings of Fact" with the
following supplementation.
On June
21, 2017, claimant sought treatment for right leg and foot
swelling that began the day before. (Exs. A1-A5). Right foot
x-rays showed normal alignment and no fractures or
dislocation, but noted degenerative changes. (Ex. A4).
Claimant was diagnosed with edema and elevated blood glucose.
(Ex. A2-3).
On June
28, 2017, claimant, a furniture mover, was moving a heavy
chair down a flight of stairs with a coworker when they
became out of sync and claimant was bumped backwards down the
steps. (Tr. 8, 16). He initially did not drop the chair but
then was bumped backwards again, and the chair struck a wall
and the top of his right foot. (Tr. 8-9, 17, 20-23). Claimant
was able to finish the job, but did not walk backwards
because his right foot hurt. He took the rest of the day off.
(Tr. 9-10, 18). He tried to work the next day, but left early
because the pain in his right foot was excruciating. (Tr.
10-12, 18).
On July
1, 2017, claimant went to the emergency room for right foot
pain, reporting that he repeatedly twisted his right foot
carrying a chair downstairs with a coworker, which caused him
to go backwards missing a step. (Exs. 2-1, 3). He reported
having had immediate pain, but that he was able to finish
working. (Id.) His examination findings included
swelling, edema, and numbness. (Exs. 2-2, 3, 4). X-rays [71
Van Natta 704] showed a complex fracture/dislocation of the
tarsometatarsal junction. (Ex. 4). A CT scan showed
significant fracture deformity with dislocation at the
tarsometatarsal joint. (Ex. 5). An attempt to reduce the
dislocation was unsuccessful, and claimant was transferred to
another facility. (Ex. 3-2).
On June
2, 2017, Dr. Tomczak, a podiatrist specializing in foot/ankle
surgeries, noted that claimant was diabetic and sustained a
work-related injury and fall resulting in a traumatic
dislocation of his right midfoot. (Exs. 9-1, 34, 44). Her
preoperative examination demonstrated an unstable displaced
midfoot dislocation with concern for overlying soft tissue
swelling, which she diagnosed as a traumatic acute right
midfoot dislocation. (Ex. 9-1). Given the nature of
claimant's injury and the extent of soft tissue swelling,
Dr. Tomczak recommended staged surgical intervention,
performing a temporary reduction and fixation that day, to be
followed by reconstruction. (Id.) Her postoperative
diagnosis was a right traumatic acute dislocation of the
midfoot with underlying Charcot neuroarthropathy. (Exs. 9-1,
19-1, 24-1).
On July
17, 2017, the employer denied claimant's right foot/ankle
injury claim. (Ex. 22). Claimant requested a hearing.
On July
19, 2017, Dr. Tomczak performed right midfoot arthrodesis and
fixation surgery, noting findings consistent with early
degenerative changes consistent with Charcot
neuroarthropathy, as well as "acute dislocation"
findings. (Ex. 25-2). She diagnosed a right midfoot traumatic
dislocation with neuropathy. (Ex. 25-1).
On
October 13, 2017, Dr. Mangum, an internal medicine specialist
who examined claimant at the employer's request,
diagnosed complicated and uncontrolled diabetes, including
peripheral neuropathy and neural arthropathy with Charcot
joint, and probable nephropathy. (Ex. 36A1-6). Dr. Mangum
deferred the questions concerning Charcot foot to the
orthopedic provider that claimant was scheduled to see the
next day, but explained that individuals with uncontrolled
diabetes often have neuropathy, as well as
"neuroarthropathy and this combination of collapse and
dislocation and fractures of bones in the foot known as
Charcot foot or Charcot arthropathy." (Ex. 36A1-7). He
stated that he has had patients with the condition occurring
without injury, which he believed was "far more common
and a problem that happened gradually as the foot and bone
change due to the pathology and complications of the
underlying diabetes." (Id.) Dr. Mangum opined
that claimant's Charcot foot was a preexisting condition.
(Id.)
[71 Van
Natta 705] Dr. Mangum attributed claimant's Charcot foot
to his underlying uncontrolled diabetes and its
complications, rather than the reported work incident.
(Id.) He considered the "post-injury"
imaging studies to be consistent with a process that
developed over a long period, and not the single work event.
(Ex. 36A1-8). Dr. Mangum found no condition attributable to
claimant's work injury and no evidence of a preexisting
condition combining with the injury, but could not completely
rule out "some combining or minor component of work, or
some degree of work aggravating or contributing to some
extent to this problem." (Id.) Although
considering a combined condition to be unlikely, Dr. Mangum
stated that the work injury would not be the major
contributing cause of claimant's problem. (Id.)
On
October 14, 2017, Dr. Fellars, an orthopedic surgeon who
examined claimant at the employer's request, diagnosed
preexisting right foot Charcot arthropathy, multiple right
midfoot fracture dislocations secondary to the preexisting
Charcot arthropathy, a work-related right foot contusion by
history, a likely Charcot process in the left foot, and
poorly-controlled diabetes. (Ex. 37-11). Dr. Fellars stated
that claimant's work injury did not cause the right foot
fracture dislocations, and that the fracture dislocations
were due to Charcot neuroarthropathy as a sequela of his
diabetes. (Ex. 37-12-17).
According
to Dr. Fellars, Charcot foot is either due to dysregulation
of blood flow from neuropathy resulting in significant
fracture dislocations inconsistent with minor trauma, or due
to microtrauma over time that would stop a normal individual
from walking, but continues in a progressive pattern in
individuals who have neuropathy from diabetes because they do
not have protective sensation in their feet. (Ex. 37-12,
-15). Dr. Fellars opined that significant trauma is not
required to cause fractures and dislocations for individuals
with Charcot neuroarthropathy from diabetes. (Ex. 37-12-17).
He stated that a "normal foot does not fall apart as the
X-Ray reports describe without significant trauma[,]"
and described claimant's reported mechanism of injury to
be 'very low-energy." (Ex. 37-16).
Dr.
Fellars considered it medically probable that, despite the
severity of his x-ray findings, claimant was walking around
for several days after the injury due to his lack of
protective sensation from his diabetes and resultant Charcot
condition, which confirmed that his diabetes caused the
findings seen in the July 2017 imaging studies.
(Id.) He noted that he had seen many individuals
with "horrific-looking x-rays" who did not know
they had a significant problem because their foot did not
hurt due to neuropathy and diabetes. (Ex. 37-16, [71 Van
Natta 706] -18-19). Dr. Fellars concluded that claimant's
preexisting conditions did not combine with his work injury
because the injury did not cause any significant damage to
the foot, and that the major contributing cause of
claimant's need for treatment was the preexisting Charcot
condition. (Ex. 37-17).
After
reviewing claimant's imaging studies, Dr. Fellars
explained that a critical evaluation of the June 21, 2017,
x-ray showed findings consistent with an early stage 1
Charcot process, and that the July 1, 2017, x-ray findings
were "well into the fragmentation stage[,]" which
strengthened his previous opinion that claimant's
fractures and dislocations were due to the preexisting
Charcot process from diabetes. (Ex. 41-6-7). He did not
consider the work injury to be traumatic enough to cause
fractures or dislocations in a normal foot, and stated that
it was not medically probable that claimant would be able to
continue working without significant pain after his injury if
the injury actually caused the July 1, 2017, findings,
"unless the process was Charcot and not trauma."
(Ex. 41-10).
Based
on his interaction with individuals who have no history of
trauma but develop Charcot arthropathy...
