No. 07-03328. WILLIAM R. SQUIRES, Claimant.

CourtOregon
Oregon Worker Compensation 2008. No. 07-03328. WILLIAM R. SQUIRES, Claimant In the Matter of the Compensation of WILLIAM R. SQUIRES, ClaimantWCB Case No. 07-03328ORDER ON REVIEWFloyd H Shebley, Claimant Attorneys VavRosky MacColl Olson et al, Defense AttorneysReviewing Panel: Members Langer and Biehl.The self-insured employer requests review of that portion of Administrative Law Judge (ALJ) Fisher's order that set aside its denial of claimant's new or omitted medical condition claim for facet syndrome at L4-5 and L5-S1. In his brief, claimant challenges that portion of the ALJ's order that upheld the employer's denial of his aggravation claim for a low back condition. On review, the issues are compensability and aggravation. We affirm in part and reverse in part. FINDINGS OF FACT We adopt the ALJ's findings of fact and provide the following summary. Claimant was compensably injured on March 20, 2004, when he slipped on ice while carrying a 40-pound box of frozen food. He did not seek medical treatment until May 27, 2004. Claimant initially treated with Dr. Wilson. The employer accepted an acute lumbar strain. (Ex. 23). Claimant's back condition was found medically stationary on January 6, 2005. (Exs. 38-39). The claim was closed on March 11, 2005 without an award of permanent disability. (Ex. 43). Claimant testified that he continued to experience back pain. On July 23, 2006, claimant signed an "801" form that referred to low back pain and described the incident where he slipped on ice. (Ex. 49). A questionnaire signed on the same day indicated that claimant had the same pain since the original injury, but it started getting worse in May. (Ex. 48). On September 21, 2006, the employer issued a denial, explaining that claimant's "low back pain" was not compensably related to his employment with the employer "on or about July 21, 2006." (Ex. 67). On February 15, 2007, claimant signed an aggravation claim form. (Ex. 85). The aggravation claim was denied on May 21, 2007. (Ex. 93). Claimant requested a hearing on both denials. CONCLUSIONS OF LAW AND OPINION Aggravation We adopt and affirm that portion of the ALJ's order that upheld the employer's denial of claimant's aggravation claim for a low back condition. Low Back Condition On September 21, 2006, the employer issued a denial, explaining that claimant's "low back pain" was not compensably related to his employment with the employer "on or about July 21, 2006." (Ex. 67). We begin by clarifying the issue litigated at hearing, Claimant's attorney explained that the employer's first denial denied a new injury and claimant's "current condition." (Tr. 6). The employer's attorney responded that the September 21, 2006 denial was a denial of a new back injury, rather than a "current condition denial." (Id.) Later, the employer's attorney explained that it appeared the parties could agree that claimant did not have an acute injury on July 21, 2006, and that the dispute was whether the facet joint conditions diagnosed by Dr. Long were related to the 2004 work injury. (Tr. 10). The ALJ's order explained that the disputed issue involved claimant's "current low back condition," which claimant asserted was a problem with the L4-5 and L5-S1 facet joints caused by the March 2004 injury. Claimant testified that he did not have a new back injury in July 2006. (Tr. 24, 30). Under these circumstances, notwithstanding that the employer's September 21, 2006 denial denied claimant's "low back pain" as not compensably related to his employment "on or about July 21, 2006" (Ex. 67), the record indicates that the parties agreed to litigate a new or omitted medical condition claim for L4-5 and L5-S1 facet syndrome. See Weyerhaeuser Co. v. Bryant, 102 Or App 432, 435 (1990) (when it is apparent that the parties tried a case by agreement with a particular issue in mind, it was improper for the ALJ and Board not to decide that issue). Claimant must establish the existence of his claimed conditions, and that the work injury was a material contributing cause of his need for treatment or disability for those conditions. See Betty J. King, 58 Van Natta 977 (2006) (the claimant must independently establish compensability of a new or omitted medical condition by proving that the work injury is a material contributing cause of the disability or need for treatment); Maureen Y. Graves, 57 Van Natta 2380, 2381 (2005) (proof of the existence of the condition is a fact necessary to establish the compensability of a new or omitted medical condition). Neither party challenges the ALJ's conclusion that a "material cause" standard applies. The ALJ explained that, based on the...

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