72 Van Natta 51 (2020)
In the Matter of the Compensation of CHRISTOPHER D. PAULSEN, Claimant
WCB No. 18-02091
Oregon Worker Compensation
January 15, 2020
Bennett Hartman Morris & Kaplan, Claimant Attorneys
Gress,
Clark, Young, & Schoepper, Defense Attorneys
Reviewing Panel: Members Lanning and Woodford.
ORDER
ON REVIEW
The
self-insured employer requests review of Administrative Law
Judge (ALJ) Mills’s order that: (1) set aside its
denial of claimant’s injury claim for a right knee
condition; and (2) awarded a $10,000 employer paid attorney
fee. On review, the issues are compensability and attorney
fees.
We
adopt and affirm the ALJ’s order with the following
supplementation concerning compensability.
The ALJ
reasoned that Dr. Colville, claimant’s surgeon, was in
a more advantageous position than Dr. Toal to offer an
opinion. Thus, the ALJ concluded that claimant’s
testimony, the contemporaneous medical records, and Dr.
Colville’s opinion persuasively established that
claimant’s work injury was at least a material cause of
his disability/need for treatment for his right knee
condition.
On
review, the employer contends that Dr. Toal’s opinion
should be given the most weight. For the following reasons,
we agree with the ALJ’s determination.
To
establish a compensable injury, claimant must prove that his
February 2018 work incident was a material contributing cause
of his disability/need for treatment for his right knee
condition. ORS 656.005(7)(a); ORS 656.266(1); Tricia A.
Somers, [55 Van Natta 462], 463 (2003). If claimant
establishes an “otherwise compensable injury,”
and a “combined condition” is present, the
employer must prove that the “otherwise compensable
injury” was not the major contributing cause of
claimant’s disability/need for treatment of the
combined right knee condition. ORS 656.005(7)(a)(B); ORS
656.266(2)(a); SAIF v. Kollias, 233 Or.App. 499, 505
(2010); Jack G. Scoggins, [56 Van Natta 2534], 2535
(2004).
When
determining major contributing cause, a medical expert must
weigh the relative contribution of each cause, including the
precipitating cause under the circumstances, and determine
which is the primary cause. Dietz v. Ramuda, 130
Or.App. 397, 401-02 (1994), rev dismissed, 320 Or.
416 (1995).
[72 Van
Natta...
