In re Compensation of Daniels, 020922 ORWC, 20-05332

Case DateFebruary 09, 2022
In the Matter of the Compensation of JULIE A. DANIELS, Claimant
WCB No. 20-05332
Oregon Worker Compensation
February 9, 2022
         ORDER ON REVIEW           Dale C Johnson, Claimant Attorneys           Sather Byerly Holloway - SBH Legal, Defense Attorneys          Reviewing Panel: Members Ousey and Curey.          Claimant requests review of Administrative Law Judge (ALJ) Ilias’s order that found that claimant’s medical services claim for a Nevro high-frequency spinal cord stimulator (Nevro) trial and for medical services was not causally related to her compensable low back injury. On review, the issue is medical services. We reverse.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact,” and provide the following summary and supplementation.          In May 1996, while working for a previous employer, claimant sustained a low back injury that was accepted for a right lumbar strain, L3-4 disc herniation, and epidural fibrosis at the site of her L3-4 discectomy. (Ex. 11). Following treatment, claimant was able to return to her work as a nurse and was symptom-free for several years.          In March 2004, while working with the current employer, claimant sustained another low back injury. (Ex. 3)          On January 4, 2007, Dr. Grunwald performed a medical arbiter examination for the 1996 claim. (Ex. 13A-1). He opined that claimant’s ongoing low back and lower extremity pain was secondary to disc tears and possible leakage of disc material. (Ex. 13A-14). He further opined that claimant’s 2004 work injury was the “inciting event” likely resulting in the disc tears. (Id.)          In August 2007, a prior ALJ found that claimant’s L3-4 annular tear condition was materially caused by her 2004 work-related injury. (Ex. 14A). On review, the Board adopted and affirmed the ALJ’s order, concluding the employer was responsible for claimant’s condition under the “last injury rule” as expressed in Industrial Indemnity Co. v. Kearns, 70 Or App 583, 588 (1984). (Ex. 14B-3).          The Board further determined that there had not been a new compensable injury involving claimant’s low back after the employer accepted the March 2004 injury claim and, thus, the employer remained responsible for claimant’s low back condition. (Id.) The court affirmed the Board’s order. (Ex. 17A).          On December 22, 2010, pursuant to an approved stipulation, the employer agreed to accept a “lumbar strain and L3-4 annular tear” and to process medical bills for payment as allowed under ORS 656.245, related to the accepted L3-4 annular tear. (Ex. 18A-3-4).          On May 22, 2014, Dr. Kitchel examined claimant at the request of the employer. (Ex. 29). He determined that claimant had “evidence of a chronic pain syndrome secondary to [the 2004] work injury and possible arachnoiditis, as diagnosed in the 2014 MRI scan.” (Ex. 29-15). He reasoned that the arachnoiditis would be related to the 2004 work injury because it resulted from treatment claimant received for that injury. (Id.) He recommended continued treatment and pain management with Dr. Morgan, including an intrathecal pain medicine delivery system, along with oral medication. (Ex. 29-16).          In September 2016, Dr. Morgan agreed that claimant’s symptoms were indicative of possible arachnoiditis. (Ex. 31-5). She recommended a Nevro trial. (Id.)          In December 2018, Dr. Swanson examined claimant at the employer’s request. (Ex. 33). He observed mild behavior signs with possible secondary gain. (Ex. 33-28). He opined that claimant’s current symptoms were due to her “biopsychosocial pathology” in the lumbar spine and were unrelated to the 2004 work injury. (Ex. 33-36). He reasoned that “the biological components include her preexisting lumbar spondylosis with intervertebral disc degeneration and probable arthritis in the facet joints, and the prior lumbar spine surgery with preexisting low back pain prior to [March 7, 2004] (failed back surgery syndrome—FBSS).” (Id.) Dr. Swanson explained that claimant’s “psychosocial factors include...

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