Date: 01-22-2015

Case Style: In the Matter of the Compensation of Shawn C. Ryan, Claimant

Case Number: A152555

Judge: Per Curiam

Court: Oregon Court of Appeals on appeal from the Workers' Compensation Board

Plaintiff's Attorney: Chris Moore argued the cause for petitioner. On
the briefs was Allison B. Lesh.

Defendant's Attorney: John Pitcher argued the cause and filed the brief for
respondent.

Description: Claimant seeks reversal and remand of the Workers’
Compensation Board’s determination that employer met its
burden under ORS 656.266(2)(a) to prove that claimant’s
“otherwise compensable injury” is not the major contributing
cause of his disability or need for treatment. Claimant
argues that the board’s decision is not supported by substantial
evidence or substantial reason. See ORS 183.482(8)(c).
We disagree and, therefore, affirm.
As we have explained, “[i]n assessing the major contributing
cause of a combined condition, ORS 656.005(7)(a)(B)
requires ‘a comparison of the relative contribution of the
preexisting disease or condition and the work-related incident.’
” Cummings v. SAIF, 197 Or App 312, 318, 105 P3d
875 (2005) (quoting Dietz v. Ramuda, 130 Or App 397, 401,
882 P2d 618 (1994), rev dismissed, 321 Or 416 (1995)). Here,
the board credited the opinions of employer’s three medical
experts, all of whom opined that claimant suffered from
a preexisting degenerative disc disease that was the major
contributing cause of the L4-5 disc herniation for which
claimant required surgery following his work injury.
Claimant contends, however, that those opinions
do not constitute substantial evidence, and that the board’s
decision to credit them lacks substantial reason, because
employer’s experts reviewed only an MRI report to evaluate
claimant’s preinjury condition. Claimant relies on our decision
in Cummings, in which we remanded for the board to
address an “apparent deficiency” in the opinion of an expert
who “assumed” and “suspected” that the claimant had a preexisting
condition but did not review any preinjury records
before offering an opinion that the claimant’s preexisting
condition was the major cause of his combined condition. 197
Or App at 319.
Here, unlike in Cummings, employer’s experts did
not simply speculate about claimant’s preexisting condition.
The preinjury MRI report documents the nature of claimant’s
preexisting degenerative low back changes, including
at the level of his eventual disc herniation. Although claimant
argues that the experts needed to review the actual diagnostic
films or preinjury chart notes to “reliably” evaluate
Cite as 268 Or App 669 (2015) 671
the extent of claimant’s preexisting condition, neither claimant’s
expert nor any other evidence in the record suggests
that the MRI films materially differed from the MRI report
or that the MRI findings were inaccurate. On the record in
this case, substantial reason supports the board’s finding
that the opinions of employer’s experts are more persuasive
than those of claimant’s expert.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: