In re Compensation of Karna, 072820 ORWC, 18-03573

Docket Nº:WCB 18-03573
Case Date:July 28, 2020
72 Van Natta 688 (2020)
In the Matter of the Compensation of CHRISTOPHER KARNA, Claimant
WCB No. 18-03573
Oregon Worker Compensation
July 28, 2020
          DiBartolomeo Law Office PC, Claimant Attorneys           SAIF Legal Salem, Defense Attorneys           Reviewing Panel: Members Lanning and Woodford.          ORDER ON REVIEW          Claimant requests review of that portion of Administrative Law Judge (ALJ) Otto’s order that upheld the SAIF Corporation’s denial of his new/omitted medical condition claim for a right knee condition. In its respondent’s brief, SAIF contests the ALJ’s determination that claimant’s hearing request encompassed its denial of his new/omitted medical condition claim. On review, the issues are jurisdiction and compensability. We affirm in part and reverse in part.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact” with the following summary and supplementation.          In April 2017, claimant was injured at work when he climbed a set of bleachers and fell, striking his right knee cap. (Ex. 1).          On April 13, 2017, claimant was evaluated by FNP Humphrey, who diagnosed an effusion of the bursa of the right knee. (Ex. 2-2). Her examination showed discomfort with full extension and flexion past 90 degrees, but negative varus/valgus, Lachman’s, and McMurray’s testing. (Ex. 2-1).          On April 21, 2017, claimant was evaluated by PA Tabor, who diagnosed a right knee sprain/strain and pre-patellar bursitis. (Ex. 6). Later, Dr. Klatt, who worked in the same office as PA Tabor, agreed that claimant’s examination did not show findings consistent with a right knee medial meniscal tear. (Ex. 20).          In May 2017, SAIF accepted right knee bursitis as nondisabling. (Ex. 8).          In April 2018, claimant filed an aggravation claim, and was evaluated by an orthopedist, Dr. Sitkowski, who recommended an MRI. (Exs. 11, 12). In May 2018, a right knee MRI showed a large horizontal tear of the medial meniscus. (Ex. 14-2).          [72 Van Natta 689] On May 31, 2018, claimant was evaluated by Dr. Tesar, an orthopedic surgeon, at SAIF’s request. (Ex. 15). He diagnosed resolved right knee bursitis and a degenerative horizontal tear of the medial meniscus that was unrelated to the April 2017 work injury. (Ex. 15-6). Dr. Tesar explained that the meniscal tear was a type that was not due to trauma. (Ex. 15-8). Further, he did not consider hitting a knee on a bleacher to be the type of injury that would result in a meniscal tear. (Id.)          In June 2018, claimant was evaluated by Dr. Benz, an orthopedic surgeon. (Ex. 17). He diagnosed a right knee complex tear of the medial meniscus and recommended an arthroscopic procedure. (Ex. 17-5). Claimant initiated a new/omitted medical condition claim, signed by Dr. Benz, requesting acceptance of the right knee medial meniscus tear. (Ex. 16).          On June 13, 2018, SAIF issued two denials referencing the same claim number and the April 3, 2017, date of injury. (Exs. 18, 19). One denial concerned claimant’s aggravation claim. (Ex. 18). The other denial involved claimant’s new/omitted medical condition claim for a right knee medial meniscal tear. (Ex. 19).          On July 17, 2018, claimant filed a request for a hearing. (Hearing File). The hearing request marked the box labeled “DENIAL,” listed a June 13, 2018, denial date, and marked the box for “Aggravation.” (Id.) The hearing request listed the date of injury and claim number that was referenced on both of SAIF’s denials. (Id.)          In December 2018, Dr. Benz performed an arthroscopic partial right medial meniscectomy. (Ex. 21).          In January 2019, Dr. Benz disagreed with Dr. Tesar’s opinion. (Ex. 22). He opined that claimant’s right medial meniscal tear was directly related to the April 2017 work injury. (Ex. 22-1). Dr. Benz explained that a horizontal meniscal tear could be caused by a direct impact injury like claimant sustained. (Id.) He questioned Dr. Tesar’s ability to know the forces that resulted from claimant’s injury to an exact degree that would rule out the occurrence of a right knee meniscal tear. (Ex. 22-1-2). He also opined that claimant’s April 2017 evaluation was consistent with the occurrence of a right knee meniscal tear. (Ex. 22-2).          In May 2019, Dr. Tesar reiterated that claimant’s mechanism of injury did not include any twisting of the knee, and, as such, was not consistent with the occurrence of a right knee meniscal tear. (Ex. 23-1). He characterized Dr. Benz’s [72 Van Natta 690] opinion that claimant had a traumatically caused meniscal tear as based on an inaccurate assumption that claimant’s injury involved twisting of the knee. (Id.) Dr. Tesar reasoned that claimant would have had findings consistent with a meniscal tear, such as joint-line tenderness, but he did not respond to Dr. Benz’s description of symptoms that he considered to be consistent with a meniscal tear. (Id.)          In July 2019, Dr. Benz did not believe that claimant’s specific recollection of his injury would establish that his right knee was not...

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