73 Van Natta 362 (2021)
In the Matter of the Compensation of GARRETT S. BASSETT, Claimant
WCB No. 19-02159
Oregon Worker Compensation
April 29, 2021
Scott
M McNutt Jr, Claimant Attorneys
Sather
Byerly Holloway - SBH Legal, Defense Attorneys
Reviewing Panel: Members Wold, Ousey, and Curey.
ORDER
ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ)
Fulsher’s order that upheld the self-insured
employer’s denial of his new/omitted medical condition
claim for a right hip acetabular labral tear. On review, the
issue is compensability. We reverse.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact,” with
the following summary and supplementation.
In
November 2017, claimant experienced the onset of right hip
and groin pain as he was walking and turning a corner while
carrying a ten-foot-long, one-inch-diameter metal shaft,
weighing approximately 120 pounds, on his shoulder. (Ex. 3;
Tr. 6-7). He experienced a burning sensation in the right
hip/groin area. (Tr. 7). The employer accepted a right hip
strain. (Ex. 6).
In
February 2018, claimant was evaluated by Dr. DaSilva, an
orthopedist who became his attending physician. (Ex. 7).
Considering claimant’s symptoms to be “somewhat
consistent with a labral tear,” he recommended an MRI.
(Ex. 7-3).
In
March 2018, Dr. Slaughter, a radiologist, interpreted a right
hip MRI as showing a right acetabular labral tear with mild
right hip arthrosis. (Ex. 7A). Dr. Slaughter ultimately
opined that there was no way to know with “medical
certainty” whether the right hip labral tear was due to
an acute injury, but concluded that degenerative findings in
claimant’s right hip suggested a chronic origin. (Ex.
23-2).
[73 Van
Natta 363] On August 14, 2018, claimant told Dr. DaSilva that
he had “re-injured his hip” on July 29, 2018,
when he was lifting and maneuvering a heavy object and
experienced significant right hip pain. (Ex. 11-1). Dr.
DaSilva diagnosed a likely aggravation of underlying right
hip degenerative joint disease. (Id.)
In
November 2018, claimant was evaluated by Dr. Sotta, an
orthopedic surgeon, at the employer’s request. (Ex.
14). He noted that claimant’s work as a welder required
“extensive forces and motion” through the hip
joints, and that claimant was injured when he bent and
twisted while carrying an 80 pound shaft in November 2017.
(Ex. 14-1). Dr. Sotta diagnosed a “traumatic on
degenerative” right hip acetabular labral tear that was
partially caused by the November 2017 work injury. (Ex. 14-7,
-10).
In
December 2018, Dr. DaSilva agreed with Dr. Sotta’s
November 2018 report. (Ex. 16).
In
February 2019, claimant requested acceptance of a
“right hip acetabular labral tear” as a
new/omitted medical condition. (Ex. 18). In April 2019, the
employer denied the new/omitted medical condition claim.
(Id.) Claimant timely requested a hearing.
In
March 2019, Dr. Tarbox, a radiologist, interpreted a MRI
arthrogram as showing moderate complex tearing of the
anterior and superior labrum, and a small area of chondral
fissuring involving the anterosuperior acetabulum with an
associated subchondral cyst. (Ex. 16A).
In
April 2019, Dr. DaSilva opined that claimant’s right
hip labral tear and arthritis were longstanding and
preexisted the November 2017 work injury. (Ex. 17-2). He
considered the diagnosis of a right hip strain to adequately
describe claimant’s November 2017 work injury, and he
described the injury event as “relatively minor.”
(Id.)
In June
2019, Dr. Cowan, an orthopedic surgeon who had evaluated
claimant in March 2019, explained that he could not conclude
that the November 2017 work injury was a material
contributing cause of disability/need for treatment for the
right hip labral tear. (Ex. 20-1). He noted that claimant had
preexisting hip dysplasia, which he described as a hip socket
that was too shallow to support the ball of the hip. (Ex.
20-2). He explained that, in the presence of dysplasia, the
labrum gets damaged and worn, and osteoarthritis develops.
(Id.)
[73 Van
Natta 364] On July 12, 2019, Dr. Sotta opined that claimant
had two right hip injuries at work. (Ex. 21-1). He considered
claimant’s work incidents in November 2017 and July
2018, and “primarily the first incident,” to be
the major contributing cause of the disability and need for
treatment for the right hip labral tear. (Ex. 21-3).
On July
18, 2019, Dr. Bert, a board-certified orthopedic surgeon with
over 40 years of experience, reviewed claimant’s
medical records, imaging studies, and Dr. Sotta’s July
12, 2019, opinion at claimant’s request. (Ex. 22-1,
-2). He noted that claimant first injured his hip on November
9, 2017, while carrying a “heavy rod” and
“pivoting on his left leg,” which caused
“twisting” and bringing “weight on the
right leg.” (Ex. 22-2). Dr. Bert stated that claimant
had an immediate onset of pain into the right groin that
somewhat abated with treatment, but then had a second work
incident on July 29, 2018, resulting in unabated pain.
(Id.)
Describing
the contribution of claimant’s preexisting right hip
arthritis as minimal, Dr. Bert considered claimant’s
work injuries and subsequent symptoms to be consistent with
the development of a labral tear. (Ex. 22-2, -3). He
acknowledged that claimant had preexisting hip dysplasia,
meaning that the sockets of the hip were not as deep as
“they should be.” (Ex. 22-2). Nonetheless, Dr.
Bert concluded that claimant’s “work incidents,
primarily the first one,” were the “direct
cause” of the labral tear. (Ex. 22-3). He further
opined that “the work injury” was the major
contributing cause of the labral tear, the pathological
worsening of the tear, the disability, and need for
treatment. (Id.)
CONCLUSIONS
OF LAW AND OPINION
The ALJ
upheld the employer’s denial of claimant’s
new/omitted medical condition claim for a right hip
acetabular labral tear. In doing so, the ALJ found the
opinion of Dr. DaSilva, as supported by the opinions of Drs.
Cowan and Slaughter, most persuasive.
On
review, claimant contends that the opinions of Drs. Sotta and
Bert persuasively establish the compensability of his
new/omitted medical condition claim. Based on the following
reasoning, we agree.
To
prevail on his new/omitted medical condition
claim,1 claimant must prove that the November 2017
work event was a material contributing cause [73 Van Natta
365] of the disability or need for treatment for the right
hip labral tear condition.2ORS 656.005(7)(a); ORS 656.266(1);
Betty J. King, 58 Van Natta . This case involves
conflicting medical opinions and, therefore, presents a
complex medical question 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).
Here,
Dr. Sotta understood that, while at work in November 2017,
claimant was carrying a heavy steel shaft and felt intense
pain in the right groin area when he bent and twisted on his
right leg. (Ex. 14-1). Based on his review of the March 2018
and March 2019 MRI films and claimant’s clinical
characteristics, Dr. Sotta concluded that the right hip
labral tear was partly a degenerative preexisting condition
and partly a traumatic condition caused by the work injury.
(Ex. 14-7-9). He opined that claimant’s intense,
intermittent pain was characteristic of a symptomatic labral
tear. (Ex. 14-10). Observing that claimant did not have such
symptoms before the November 2017 work injury, Dr. Sotta
concluded that the work incident had caused a traumatic right
labrum tear. (Id.)
Subsequently,
Dr. Sotta explained that claimant had preexisting...
