In re Compensation of Whittemore, 091021 ORWC, 20-01256

Docket NºWCB 20-01256
Case DateSeptember 10, 2021
CourtOregon
73 Van Natta 701 (2021)
In the Matter of the Compensation of ALEXIS WHITTEMORE, Claimant
WCB No. 20-01256
Oregon Worker Compensation
September 10, 2021
          Welch Bruun & Green, Claimant Attorneys           Sather Byerly Holloway - SBH Legal, Defense Attorneys           Reviewing Panel: Members Ousey and Woodford.          ORDER ON REVIEW          The self-insured employer requests review of Administrative Law Judge (ALJ) Somers’s order that set aside its denial of claimant’s occupational disease claim for a right shoulder condition. On review, the issue is compensability.          We adopt and affirm the ALJ’s order with the following supplementation.1          In setting aside the employer’s denial, the ALJ found the opinion of Dr. Matiasek, who examined claimant at a previous employer’s request in February 2020, to be more persuasive than the contrary opinion of Dr. Cunningham, who examined claimant at the employer’s request in May 2020. On review, the employer contests the ALJ’s evaluation of the medical evidence. For the following reasons, we affirm the ALJ’s order.          To establish the compensability of her occupational disease claim, claimant must prove that employment conditions were the major contributing cause of her right shoulder condition. ORS 656.266(1); ORS 656.802(2)(a). Employment conditions were the “major contributing cause” if they contributed to the disease more than all other causes combined. See Bowen v. Fred Meyer Stores, 202 Or App 558, 563-64 (2005); Dietz v. Ramuda, 130 Or App 397, 401-02 (1994).          Because of the disagreement between medical experts regarding the cause of claimant’s condition, this claim presents a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279, 282 (1993); Matthew C. Aufmuth, 62 Van Natta 1823, 1825 (2010). When there is a dispute between medical experts, more weight is given to those medical opinions that are well reasoned and based on complete information. See Somers v. SAIF, 77 Or App 259, 263 (1986).          [73 Van Natta 702] Here, Dr. Matiasek initially examined claimant to determine whether her current right shoulder symptoms were due to a prior February 2015 injury claim or to her December 2019 “new injury” claim. (Ex. 12-2). Dr. Matiasek opined that the major contributing cause of claimant “requesting new care for her shoulder” and need for treatment was likely related to the “new claim,” rather than her prior 2015 shoulder injury. (Ex. 12-6-8). In reaching this conclusion, Dr. Matiasek noted that claimant’s current condition (shoulder strain) was unrelated to her 2015 right shoulder condition because she ultimately had no objective findings at the resolution of the 2015 claim, had returned to normal capacity, and had no issues for approximately five years. (Ex. 12-7-8). Dr. Matiasek further reasoned that the high demand on claimant’s body in her job as a paraeducator involved lifting/transferring students and unpredictable behavior from...

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