73 Van Natta 150 (2021)
In the Matter of the Compensation of THERON L. LEWIS, Claimant
WCB No. 18-05454
Oregon Worker Compensation
February 23, 2021
Thomas
Coon Newton & Frost, Claimant Attorneys.
SAIF
Legal Salem, Defense Attorneys.
Reviewing Panel: Members Curey and Ousey.
ORDER
ON REVIEW
Claimant
requests review of that portion of Administrative Law Judge
(ALJ) Ian Brown’s order that upheld the SAIF
Corporation’s denial of his new/omitted medical
condition claim insofar as it concerned a right knee medial
meniscus tear. On review, the issue is
compensability.1 We reverse.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact” with the
following summary and supplementation.
Claimant
is a custodian. He was injured on December 12, 2016, when he
tripped over a power cord while vacuuming. (Ex. 6). He
twisted his knee and heard a pop. (Ex. 1-1).
X-rays
of claimant’s right knee were taken on December 16,
2016. (Ex. 1-2). Dr. Devine, a radiologist, interpreted the
x-rays to show very small suprapatellar joint effusion, but
were otherwise normal. (Id.)
On
December 22, 2016, Dr. Di Paola, an orthopedic surgeon,
examined claimant and assessed a right knee sprain. (Ex.
3-2).
The ALJ
admitted Exhibit 34 for the sole purpose of considering
whether SAIF met its burden of proof under ORS 656.266(2)(a)
and ORS 656.005(7)(a)(B); i.e., established that the
“otherwise compensable injury” was not the major
contributing cause of his need for treatment or disability
associated with a combined condition. The ALJ did not rely on
Exhibit 34 for any other purpose. Under such circumstances,
we disagree with claimant’s contention regarding the
ALJ’s application of Exhibit 34 and, in accordance with
the ALJ’s ruling, we likewise limit our consideration
of that evidence to SAIF’s burden of proof.
[73 Van
Natta 151] An MRI of claimant’s right knee was
performed in January 2017. (Ex. 5). It was interpreted by Dr.
Hausenauer, a radiologist, to show a complex tear of the body
and posterior horn of the medial meniscus, as well as early
degenerative changes in the articular cartilage. (Ex. 5-1,
-2).
In
February 2017, Dr. Kean, an orthopedic surgeon, examined
claimant and diagnosed medial compartment cartilage loss,
consistent with medial compartment osteoarthritis, and a
medial meniscus tear in the right knee. (Ex. 7-2).
SAIF
subsequently accepted a right knee sprain. (Ex. 8).
In May
2018, Dr. Kean recommended claim closure. (Ex. 18-1). He
opined that claimant had preexisting arthritic disease, as
well as a degenerative meniscus tear in his right knee.
(Id.) Dr. Kean opined that claimant’s
“knee” was exacerbated by the work injury, but he
concluded that the injury was not “his material need
for continuing to seek treatment.” (Id.)
Thereafter, SAIF closed the claim with no permanent
disability award. (Ex. 19).
In
August 2018, Dr. Kean opined that claimant’s work
injury did not cause either his right knee osteoarthritis or
his right medial meniscus tear. (Ex. 22).
On
September 5, 2018, SAIF issued a partial denial of both the
right knee osteoarthritis and the right knee medial meniscus
tear. (Ex. 24). Claimant timely requested a hearing. (Ex.
28).
On
September 20, 2018, Dr. Ulmer, an orthopedic surgeon,
evaluated claimant for a medical arbiter examination and
found reduced range of motion in claimant’s right knee.
(Ex. 25-2). He attributed these findings to right knee
arthrosis. (Ex. 26).
In
early December 2018, claimant was seen by Dr. Lamprecht, an
orthopedic surgeon, who diagnosed a right knee medial
meniscus tear. (Ex. 29-1). He reviewed claimant’s right
knee x-rays and observed only minimal degenerative changes in
the medial compartment. (Id.) He opined that it was
unlikely that degenerative changes were the cause of
claimant’s issues, given the excellent joint space
shown on his imaging studies. (Id.) He further
opined that claimant’s mechanism of injury was
consistent with the meniscus pathology visualized on his
imaging studies. (Ex. 29-2). He performed a steroid injection
and recommended physical therapy, noting that surgery could
be necessary in the future. (Id.)
[73 Van
Natta 152] In mid-December 2018, Dr. Brenneke, an orthopedic
surgeon who evaluated claimant at SAIF’s request,
assessed degenerative joint disease/osteoarthritis and a
degenerative right knee medial meniscus tear. (Ex. 30-7). He
opined that the meniscus tear was preexisting, and that it
either caused claimant’s osteoarthritis or was caused
by the osteoarthritis. (Ex. 30-9). Dr. Brenneke concluded
that claimant had no need for treatment related to his
meniscus tear secondary to the work event. (Id.)
On
January 14, 2019, Dr. Kean opined that “[d]ue to the
location, type and nature of the meniscus tear,” it
“was not acutely caused” by the injury. (Ex.
31-1). Rather, he concluded that the arthritis (which
included the tear) was degenerative and preexisted the
injury. (Id.) Further, he opined that the injury was
not the major contributing cause of either the meniscus tear
or its need for treatment. (Ex. 31-2).
On
January 15, 2019, Dr. Brenneke reviewed claimant’s
right knee MRI and opined that claimant’s meniscus tear
was preexisting and degenerative in nature, reasoning that
the location and appearance of the tear was more consistent
with a degenerative process than with an acute tear. (Ex.
32-4, -5). He...