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...
