In re Compensation of Whitley, 100721 ORWC, 19-02042

Docket NºWCB 19-02042
Case DateOctober 07, 2021
CourtOregon
73 Van Natta 738 (2021)
In the Matter of the Compensation of LAURIE L. WHITLEY. Claimant
WCB No. 19-02042
Oregon Worker Compensation
October 7, 2021
          Thomas Coon Newton & Frost, Claimant Attorneys           Sather Byerly Holloway - SBH Legal, Defense Attorneys           Reviewing Panel: Members Ceja and Woodford.          ORDER ON REVIEW          The self-insured employer requests review of that portion of Administrative Law Judge (ALJ) Fulsher's order that set aside its denial of claimant's new/omitted medical condition claim for a left ulnar neuropathy condition. On review, the issue is compensability. We affirm.          FINDINGS OF FACT          We adopt the ALJ's "Findings of Fact."          CONCLUSIONS OF LAW AND OPINION          The ALJ concluded that the worsened left ulnar neuropathy condition was directly related to claimant's work injury, and that the persuasive medical evidence established that the work injury was a material contributing cause of claimant's disability/need for treatment for the claimed condition. On review, the employer contends that the "major contributing cause" "consequential condition" standard applies, and that the medical opinions supporting the compensability of claimant's new/omitted medical condition claim are not persuasive. Based on the following reasoning, we affirm.          We first determine the applicable standard. For conditions arising directly from the work injury, claimant must prove that the work injury was a "material contributing cause" of her disability/need for treatment for the condition. ORS 656.005(7)(a); ORS 656.266(1); Albany Gen. Hosp. v. Gasperino, 113 Or App 411,415 (1992). If the condition arose as a consequence of a compensable injury, claimant must prove that the compensable injury was the major contributing cause of the consequential condition. ORS 656.005(7)(a)(A); ORS 656.266(1); Gasperino, 113 Or App at 415.          The distinction between a direct injury (subject to the "material contributing cause" standard) and a consequential condition (subject to the "major contributing cause" standard) is that the former is directly caused by the industrial accident, [73 Van Natta 739] whereas the latter is a separate condition that arises from a compensable injury. Fred Meyer, Inc. v. Crompton, 150 Or App 531, 536 (1997) (a consequential condition is "a separate condition that arises from the compensable injury, for example, when a worker suffers a compensable foot injury that results in an altered gait that, in turn, results in back strain"); Gasperino, 113 Or App at 415 (because the evidence established that the claimant's condition arose directly, although belatedly, from the work injury, the standard was material contributing cause).          Here, Dr. Long explained that claimant's accepted bee sting injury that occurred on September 25, 2018, caused an allergic reaction and swelling of his left hand and forearm. (Ex. 44-18). Dr. Long concluded that the work-related bee sting and resultant swelling between September 25, 2018 and October 4, 2018, was the major contributing cause of a worsening of claimant's left ulnar neuropathy.1(Ex. 44-18-23).          In Vasquez v. SAIF, 237 Or App 59 (2010), the claimant made a new/ omitted medical condition claim for carpal tunnel syndrome (CTS). The court noted that the evidence established that the CTS was not caused by the industrial accident itself, but rather it was brought on by compression from swelling that resulted from the injury. Id. at 64. Similarly, here, Dr. Long did not attribute claimant's worsened left ulnar neuropathy to claimant's bee sting injury itself, but to the resultant swelling that led to further ulnar nerve compression. (Ex. 44-18-23). Consequently, we apply a "consequential condition" analysis under ORS 656.005(7)(a)(A). See also SAIF v. Walker, 260 Or App 327, 336-39 (2013)...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT