In re Compensation of Lewis, 022321 ORWC, 18-05454

Case DateFebruary 23, 2021
CourtOregon
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...

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