73 Van Natta 232 (2021)
In the Matter of the Compensation of PHILLIP J. DIETZ, JR., Claimant
WCB Nos. 18-00929
Oregon Worker Compensation
April 2, 2021
Guinn
Law Team, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reinisch Wilson Weier, Defense Attorneys
Reviewing Panel: Members Woodford and Ousey.
ORDER
ON REVIEW
Claimant
requests review of those portions of Administrative Law Judge
(ALJ) Mills’s order that: (1) upheld
Intermountain’s denial of claimant’s injury claim
for a low back condition; and (2) upheld the SAIF
Corporation’s denial of his new/omitted medical
condition claim for L4-5 adjacent segment syndrome. On
review, the issue is compensability.1
We
adopt and affirm the ALJ’s order with the following
supplementation.
On
September 13, 1995, claimant compensably injured his low back
while unloading pipe from a trailer for SAIF’s insured.
(Ex. 5). SAIF ultimately accepted a low back sprain/strain
and a L5-S1 disc bulge. (Exs. 9, 38-6). In January 1999, Dr.
Grewe, a neurosurgeon, performed a decompression/discectomy
and fusion at the L5-S1 level. (Ex. 73).
On
April 19, 2017, while working as a truck driver for
Intermountain’s insured, claimant alleged that a new
injury occurred when he jumped out of the back of a truck
(approximately four feet to the ground) because a reel loaded
with wire was rolling towards him. (Exs. 145, 146, 148-5). In
June 2017, Intermountain denied the injury claim. (Ex.
160B-3, -4). Claimant timely appealed the denial.
In
August 2017, SAIF denied claimant’s new/omitted medical
condition claim for L4-5 adjacent segment syndrome. (Ex.
165). Claimant timely appealed the denial.
[73 Van
Natta 233] In upholding the denials, the ALJ found the
opinions of Dr. Rosenbaum, a neurosurgeon who examined
claimant on multiple occasions at SAIF’s request, and
Dr. Bergquist, a neurosurgeon who examined claimant on
multiple occasions at both SAIF’s and
Intermountain’s request, more persuasive than the
opinion of Dr. Puziss, an orthopedic surgeon who examined
claimant at his counsel’s request.
On
review, claimant contends that the opinion of his attending
physician, Dr. Button, persuasively establishes the
compensability of his April 2017 work injury. Moreover, he
asserts that Dr. Puziss provided the most persuasive opinion
concerning the compensability of the claimed L4-5 adjacent
segment syndrome condition. Based on the following reasoning,
we disagree with claimant’s contentions.
April
2017 Injury Claim
Relying
on the opinion of Dr. Button, his attending physician,
claimant asserts that his April 2017 work injury is
compensable. Yet, for the reasons expressed below, we find
Dr. Button’s opinion unpersuasive.
To
establish the compensability of his injury claim, claimant
has the initial burden to prove that the work event was a
material contributing cause of his disability or need for
treatment for his low back condition. See ORS
656.005(7)(a); ORS 656.266(1); Albany Gen. Hosp. v.
Gasperino, 113 Or.App. 411, 415 (1992). If claimant
carries his initial burden, and the “otherwise
compensable injury” combined with a “preexisting
condition” to cause or prolong disability or a need for
treatment, the employer must prove that the otherwise
compensable injury was not the major contributing cause of
the disability or need for treatment of the combined
condition. See ORS...
