73 Van Natta 192 (2021)
In the Matter of the Compensation of STEVEN E. SMITH, Claimant
WCB No. 19-04548
Oregon Worker Compensation
March 8, 2021
Julene
M Quinn LLC, Claimant Attorneys
Reinisch Wilson Weier, Defense Attorneys
Reviewing Panel: Members Curey and Ousey.
ORDER
ON REVIEW
The
self-insured employer requests review of Administrative Law
Judge (ALJ) Sencer’s order that: (1) set aside its
denial of claimant’s injury claim for a left wrist
condition; and (2) awarded claimant’s counsel a $20,000
assessed attorney fee for services at the hearing level. On
review, the issues are compensability and attorney fees.
We
adopt and affirm the ALJ’s order with the following
supplementation concerning the compensability
issue.1
In
setting aside the employer’s denial, the ALJ found the
opinion of Dr. Fawcett, an infectious disease specialist,
more persuasive than the opinion of Dr. Leggett, an
infectious disease specialist who examined claimant at the
employer’s request. In doing so, the ALJ reasoned that
Dr. Fawcett’s opinion persuasively established that, to
a reasonable degree of medical probability, claimant’s
work-related right thumb wound was the portal for an
infectious G streptococcus bacteria, which entered
claimant’s blood stream and caused a left wrist
infection. Moreover, the ALJ discounted Dr. Leggett’s
inconsistent opinion. Finally, the ALJ found claimant’s
testimony credible based on his demeanor while testifying.
On
review, the employer contends that Dr. Fawcett’s
opinion is unpersuasive because it was based on an inaccurate
history concerning claimant’s drug use and the
existence of a left wrist abrasion. Based on the following
reasoning, we affirm the ALJ’s order.[2]
[73 Van
Natta 193] To establish the compensability of his injury
claim, claimant has the initial burden to prove that his work
injury was a material contributing cause of his disability or
need for treatment. ORS 656.005(7)(a); ORS 656.266(1);
Albany Gen. Hosp. v. Gasperino, 113 Or.App. 411, 415
(1992). Because this case involves conflicting medical
opinions, it presents complex medical questions that must be
resolved by expert opinion. Barnett v. SAIF, 122
Or.App. 279, 282 (1993); Randy M. Manning, 59 Van
Natta 694, 695 (2007). We give more weight to those medical
opinions that are well reasoned and based on complete
information. Somers v. SAIF, 77 Or.App. 259, 263
(1986).
The
employer argues that Dr. Fawcett’s opinion (that,
assuming claimant was not an IV drug user and that he had no
other wound beyond his thumb laceration, then “the most
likely cause” of his infection would be the
work-related right thumb wound) was based on an inaccurate
history. (Exs. 26-2, -3, 28-26, -27, -40, -45). In doing so,
the employer asserts that claimant is not a credible witness
because the record indicates that he was an IV drug user and
that he had a nonwork-related left wrist abrasion, which was
a more likely source of infection than the work-related right
thumb laceration. For the following reasons, we find that Dr.
Fawcett’s opinion was...
