71 Van Natta 1226 (2019)
In the Matter of the Compensation of RAMON M. MALDONADO, Claimant
WCB No. 14-04365
Oregon Worker Compensation
October 25, 2019
Dunn
& Roy PC, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: Members Curey and Ousey. [1]
ORDER
ON REMAND
This
matter is before the Board on remand from the Court of
Appeals. SAIF v. Maldonado, 294 Or.App. 252 (2018).
The court has reversed the Board's order, Ramon M.
Maldonado, 68 Van Natta, that had reversed an
Administrative Law Judge's (ALJ's) order that upheld
the SAIF Corporation's denial of claimant's
new/omitted medical condition claim for a worsened low back
spondylolytic defect/spondylolysis condition. Reasoning that
the Board erred in applying the “law of the case”
doctrine in analyzing the persuasiveness of physician
opinions on which SAIF had relied, the court has remanded for
a determination of whether such evidence is persuasive
without application of the aforementioned doctrine. Having
received the parties' briefs on remand, we proceed with
our review.
FINDINGS
OF FACT
On
February 28, 2013, claimant sustained a compensable low back
injury when he shook dirt off a 50-pound tree root ball and
experienced the sudden onset of low back pain. (Ex. 3).
X-rays showed L5 grade 1 spondylolisthesis with suspected
spondylolysis and degenerative changes at L5-S1. (Ex. 4).
In
April 2013, Dr. Mohabeer, an occupational medicine physician,
diagnosed lumbar conditions including sprain/strain,
herniated disc, spinal stenosis, spondylolisthesis, and
radiculopathy. (Exs. 8, 11-5). He opined that the February
2013 work injury was the major contributing cause of
claimant's current condition/need for treatment.
(Id.)
An MRI
showed L3-4 canal stenosis, bilateral L5 neural foraminal
stenosis, bilateral L5 spondylolysis and grade 1
spondylolisthesis, posterior annular bulges/ protrusions at
all lumbar levels, and posterior tears at L2-3 and L4-5. (Ex.
10). Electrodiagnostic studies reflected no neurological
abnormalities. (Ex. 13).
[71 Van
Natta 1227] In May 2013, Dr. Brett, orthopedic surgeon,
diagnosed an L3-4 disc protrusion and worsened L5-S1
spondylolytic spondylolisthesis with bilateral L5
impingement. (Ex. 14-1). He noted preexisting L5-S1
conditions, but opined that the February 2013 injury was the
major contributing factor in the development of his L3-4
cauda equina compression, bilateral L5 radiculitis, and
radiculopathy at L5-S1 “resulting in pathologic
worsening with his lifting incident of 02/28/2013.”
(Ex. 14-3).
On
follow-up, Dr. Mohabeer concluded that the MRI showed
multiple posttraumatic lumbar pathologies, including L5-S1
herniated disc, spondylolisthesis, spinal stenosis, and nerve
root impingement. (Exs. 11-5, 15-5). He correlated these
findings to claimant's current work-related
symptomatology. (Ex. 11-5).
Dr.
Duff, orthopedic surgeon, performed an examination at
SAIF's request. (Ex. 18). He diagnosed an acute lumbar
strain related to the February 2013 injury, in addition to
multilevel degenerative disc disease, L4-5 and L5-S1 central
and foraminal stenosis, and L5-S1 grade 1 spondylolisthesis.
(Ex. 18-5). He opined that the imaging study findings were
idiopathic and degenerative, “with the
spondylolisthesis being an added development anomaly
frequently associated with back complaints in middle
age.” (Ex. 18-6).
In June
2013, Dr. Brett determined that claimant had an annular
injury, L3-4 disc herniation, and probable pathological
worsening of his preexisting spondylolytic spondylolisthesis
at L5-S1. (Ex. 24).
In
August 2013, Dr. Vessely, orthopedic surgeon, performed an
examination at SAIF's request. (Ex. 29). He diagnosed
L5-S1 spondylolisthesis, significant multilevel spondylosis,
and a February 2013 work injury with inconsistencies. (Ex.
29-8). He did not find any “acute changes in
[claimant's] lumbar spine that [he] would relate to an
injury process.” (Ex. 29-10). Dr. Vessely determined
that claimant's conditions were related to degeneration,
genetics, and natural aging. (Id.) He did not
believe that claimant's condition and clinical status had
any relationship to what occurred on February 28, 2013. (Ex.
29-10, -11). He opined that claimant's work incident did
not meet the “material level of causation, ” and
concluded that there was no “combined condition.”
(Ex. 29-11).
In
mid-August, 2013, Dr. Sweeney, chiropractor, signed a
concurrence from claimant's counsel, agreeing that
claimant's MRI showed degenerative, preexisting
spondylosis and a pars defect, which he described as a
fracture of part of the vertebrae and not acutely caused by
the work injury. (Ex. 32-2, -3). [71 Van Natta 1228]
In
mid-August 2013, Dr. Mohabeer signed a concurrence from
claimant's counsel, diagnosing L5-S1 spondylolisthesis,
which was a slippage of the vertebrae and caused pinching of
a nerve. (Ex. 33-2). He indicated that the condition was not
surgical or symptomatic until it likely worsened with
claimant's work injury, causing further slippage.
(Id.) Finally, Dr. Mohabeer stated that
claimant's “worsened spondylolysis in the lower
back, was caused in major part by his work injury.”
(Ex. 33-3).
Dr.
Brett also signed a concurrence letter from claimant's
counsel, opining that claimant had “spondylosis at
L5-S1 which allowed the L5 disc to slip forward onto the S1
vertebrae.” (Ex. 34-2). He indicated that “this
spondylolysis was the breakage of bones and likely was a
congenital or abnormality that was present at birth * *
*.” (Id.) He noted that the MRI showed
significant slippage, and concluded that claimant's work
injury worsened his “spondylolisthesis, ” which
caused it to further slide forward. (Id.) He
explained that the traumatic L5-S1 disc protrusion
“actually allow[ed] that slippage to occur more rapidly
and it was a combination of the disc protrusion and the
spondylolisthesis that caused the impingement of the
bilateral L5 nerve roots at that level.” (Id.)
Dr. Brett concluded that “the major contributing cause
of that combination of the preexisting spondylolysis, the
progression of the spondylolisthesis, the degenerative
changes and the disc protrusion, [was claimant's] work
activities as occurred on 02/28/2013 [.]” (Ex. 34-3).
In
October 2013, pursuant to an approved stipulation, SAIF
agreed to accept the claim for lumbar strain/sprain, L3-4
disc protrusion, and L5-S1 disc protrusion. (Ex. 39). SAIF
issued a Notice of Acceptance accepting those conditions.
(Ex. 40).
In
November 2013, claimant began treating with Dr. Blake,
physiatrist, who did not detect objective findings of nerve
root impingement at any level on either side of the lumbar
spine. (Ex. 42-4). In December 2013, Dr. Blake noted that Dr.
Collada, neurosurgeon, had reviewed claimant's medical
records and concluded that he did not have evidence of a
surgical problem. (Ex. 43-1). Dr. Blake referred claimant to
Dr. Rosenbaum, neurosurgeon, for another
opinion.2 (Exs. 44-1, 45).
[71 Van...
