71 Van Natta 1128 (2019)
In the Matter of the Compensation of TIMOTHY W. BLANKENSHIP, Claimant
WCB No. 18-00807
Oregon Worker Compensation
October 4, 2019
Dale C
Johnson, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: Members Lanning and Woodford.
ORDER ON REVIEW
The
SAIF Corporation requests review of Administrative Law Judge
(ALJ) Poland's order that set aside its denial of an
injury claim for a left hip condition. On review, the issue
is course and scope of employment.
We
adopt and affirm the ALJ's order with the following
supplementation.
The ALJ
determined that claimant, a public transportation mechanic,
compensably injured his left hip at work when he moved his
left foot behind him and rested the tip of his boot on the
floor which caused his left hip prosthesis to separate,
leading to its significant failure. At the time of the
injury, claimant was on the employer's premises, during
his normal working hours, waiting to use a computer to log
out for a scheduled break. The ALJ concluded that the injury
"arose out of claimant's employment. In doing so,
the ALJ relied on the opinion of claimant's orthopedic
surgeon, Dr. Jewett, who explained that negative pressure
from claimant's leg movement combined with the
preexisting degradation of the prosthesis (termed
"trunnionosis") to result in its failure. The ALJ
further noted that claimant was not required to eliminate
idiopathic causes of the failed prosthesis because this
disputed claim did not involve an unexplained fall. The ALJ
cited Wilson v. State Farm Ins., 326 Or. 414, 418
(1998), for the proposition that an injury caused by movement
around the workplace "arises out of employment even if
the injury is not caused by a particular hazard in the
workplace.
Turning
to the issue of medical causation, the ALJ noted that Dr.
Jewett's unrebutted opinion established that the work
injury was a material contributing cause of the need for
treatment/disability for the failed left hip prosthesis. The
ALJ further reasoned that, even if a combined condition had
been established based on the existence of a
"cognizable" preexisting condition, Dr.
Jewett's opinion did not establish that the preexisting
condition was the major contributing cause of the failed left
hip prosthesis. Accordingly, reasoning that claimant had
established an "otherwise compensable injury," but
that SAIF had not sustained its burden of proof concerning
the major contributing cause of the disability/need for
medical treatment of the combined condition, the ALJ set
aside SAIF's denial. See ORS 656.266(2)(a).
[71 Van
Natta 1129] On review, SAIF contends that claimant's left
hip injury did not "arise out of his employment.[1] In doing
so, SAIF argues that the risk of claimant's left hip
prosthesis failure was "entirely personal." SAIF
attempts to distinguish several cases cited in the ALJ's
order, contending that the claimants in those cases were
injured while moving about the work area engaging in a work
task. See Wilson v. State Farm Ins., 326 Or. 413,
418...
