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...
