Date: 05-28-2015

Case Style: Dennis L. Corkum v. Bi-Mart Corporation

Case Number: A153295

Judge: Hadlock

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

Plaintiff's Attorney: Dale Johnson argued the cause and filed the brief for
petitioner.

Defendant's Attorney: Jim Moller argued the cause and filed the brief for
respondent.

Description: Claimant, who had a hernia in his groin surgically
repaired in 1995, was diagnosed with another hernia
in 2011 after he experienced groin pain while lifting heavy
merchandise at work. Claimant filed a workers’ compensation
claim for that groin condition. Employer conceded
that the work incident was a material contributing cause
of claimant’s condition, but it denied his workers’ compensation
claim, asserting that the work injury had combined
with the 1995 hernia condition, which was a preexisting
condition that was the major contributing cause of claimant’s
disability and need for treatment of the resulting combined
condition. The Workers’ Compensation Board agreed
with employer and affirmed the denial. Claimant now seeks
judicial review of the board’s order, arguing that the board
relied on the opinion of a doctor who improperly included in
his weighing of contributory causes a condition, abdominal
wall weakness, that merely rendered claimant more susceptible
to hernias and thus should have been excluded from
consideration. We reverse and remand.
We frame our discussion, as did the board, in terms
of the “combined condition” analysis. A combined condition
arises when “an otherwise compensable injury”—that is, an
accidental injury “arising out of and in the course of employment,”
ORS 656.005(7)(a)—“combines * * * with a preexisting
condition to cause or prolong disability or a need for
treatment.” ORS 656.005(7)(a)(B). Such a combined condition
is compensable only “to the extent that the otherwise
compensable injury is the major contributing cause” of the
combined condition’s disability or need for treatment. Id.
See Vigor Industrial, LLC v. Ayres, 257 Or App 795, 802,
310 P3d 674 (2013), rev den, 355 Or 142 (2014) (explaining
ORS 656.005(7)(a)(B) to have that dual significance). Thus,
if a preexisting condition is the major contributing cause of
a combined condition, the combined condition is not compensable.
1 However, not all conditions from which a worker
1 ORS 656.005(24)(a), in turn, defines “preexisting condition” for industrial
injury claims as “any injury, disease, congenital abnormality, personality disorder
or similar condition that contributes to disability or need for treatment,”
provided that, with exceptions not applicable here, the worker had been diagnosed
with the condition or obtained medical services for its symptoms before the
claimed compensable injury occurred.
414 Corkum v. Bi-Mart Corp.
suffers before a workplace injury qualify as preexisting conditions
that “count” for purposes of the combined-condition
analysis. To the contrary, a condition that merely renders a
worker more susceptible to a work-related injury is deemed
not to “contribute to disability or need for treatment.” ORS
656.005(24)(c). Thus, if a condition merely renders a worker
more susceptible to injury, it is not a “preexisting condition”
and it “play[s] no part in the ‘major contributing cause’ analysis.”
2 Vigor Industrial, 257 Or App at 803. As our discussion
of the facts and the board’s analysis will demonstrate, that
dichotomy—“preexisting condition” versus “susceptibility”—
is key to this case.
The underlying facts are not in dispute. In 1953,
when claimant was five years old, he had a left inguinal
hernia repaired. Claimant had a second inguinal hernia
repaired in 1995, that time on the right side. That hernia
was not work related. The hernia was “indirect,” meaning
that it protruded through the internal inguinal ring, a natural
opening in the abdominal wall. It was repaired through
an “open surgery” procedure in which the surgeon attached
reinforcing mesh to the outside of the abdominal wall. After
that surgery, claimant had no further symptoms, and the
repair site was not monitored by any doctor.
While he was working for employer in January 2011,
claimant felt a sharp pain in his right groin as he lifted a
40- to 50-pound box. Claimant was referred to a surgeon,
Dr. Fontus, who diagnosed a right inguinal hernia and a
smaller, asymptomatic left inguinal hernia. Fontus recommended
surgical repair.
Claimant made a workers’ compensation claim for
“right groin condition.” Employer requested an independent
medical examination, which was performed by Dr. Bernardo.
Bernardo diagnosed a “recurrent right inguinal hernia” and
an “asymptomatic, previously unrecognized left inguinal
2 We note that the role of “predisposing” condition differs depending on
whether the condition whose compensability is in question is a combined condition
or a consequential condition. As we recently explained, if a condition that
merely renders the worker more susceptible to an injury or disease is itself a
work-related injury, it must be weighed in determining the major contributing
cause of the consequential condition notwithstanding ORS 656.005(24)(c). See
SAIF v. DeMarco, 271 Or App 226, 230-31, ___ P3d ___ (2015).
Cite as 271 Or App 411 (2015) 415
hernia.” He also discovered an asymptomatic umbilical hernia
of which claimant had not been aware. Bernardo opined
that the left inguinal hernia and the umbilical hernia were
not work related. In the report that he wrote after the examination,
Bernardo stated that claimant’s right inguinal hernia
“clearly has been present for some period of time.” In
his view, it was “medically unlikely” that the work incident,
which he described as a “modest lifting event,” caused the
hernia. He added, “It is much more likely that a small recurrent
hernia has been present for some period of time and that
hernia has enlarged steadily in the years following the original
repair. The examinee’s work event then enlarged the
hernia, crimped it, or otherwise brought it to his attention.”
Bernardo noted that up to 10 percent of inguinal hernia
repairs fail over time. He opined that claimant’s “recurrence
is an outgrowth of whatever inadequacies may have existed
at the original repair. It is entirely likely that some level
of recurrence has been present for months or even years.”
Ultimately, Bernardo concluded that claimant’s right hernia
“represents a recurrence of a previously repaired, non-job
related inguinal hernia. The presence of that previous hernia
and its failure over time is a significant preexisting
condition and in toto represents the majority cause of the
recurrent hernia on the right side. The job event is a material
contributing cause of the disability and need for treatment.
That is, the examinee has a documented work event
that led to pain and problems. However, in this instance,
the majority cause of the hernia is the preexisting hernia.”
Bernardo added that claimant’s disability and need for
treatment was “primarily related to the preexisting hernia
and the failure of its repair.”
Employer denied claimant’s claim, asserting that
his condition was not worsened by and did not arise out of
and in the course of his employment.
Fontus performed surgery on claimant about a
month after Bernardo’s examination. Fontus did not perform
an open surgery like the one that had been done in 1995, but
instead approached the inguinal region from inside claimant’s
abdomen with a laparoscope inserted near his navel.
Because of that, Fontus could not see the original repair. He
repaired both inguinal hernias with mesh that he attached
416 Corkum v. Bi-Mart Corp.
to the inside of the abdominal wall. He also repaired the
umbilical hernia.
Claimant requested a hearing on employer’s denial
of his claim before the Workers’ Compensation Board. He
also requested another medical examination, which was
performed by Dr. Salomon in July 2011. Salomon examined
claimant physically and reviewed medical records including
Bernardo’s report and Fontus’s post-surgery report. Salomon
agreed with Bernardo that the right inguinal hernia had
likely been present before the lifting incident at work and
that the work incident had exacerbated it. He also agreed
that the recurrence was “due to a failure of the repair” that
was made in 1995. However, he disagreed with Bernardo’s
assessment that the 2011 work incident had been minor. He
concluded that the “lifting incident was most likely the cause
that exacerbated the already present right inguinal hernia.”
Employer’s attorney obtained a concurrence letter
from Bernardo in which he stated three reasons that he did
not believe that the work incident was the major contributing
cause of claimant’s disability and need for treatment.
The first reason was the existence of the 1995 hernia repair.
The second was the relative insignificance of the January
2011 lifting event at work. The third was the presence of
the two other hernias that Fontus repaired. According to
Bernardo, “the development of two unrelated asymptomatic
hernias, in addition to the right inguinal hernia, confirms
that [claimant] also has a weakening of the abdominal wall
tissue predisposing him to develop hernias. In other words,
[claimant’s] abdominal wall tissue is weaker than other people
for reasons intrinsic to [claimant].” Bernardo added that
claimant’s age and the fact that he had smoked for 40 years
“would contribute to the weakening of the abdominal tissue.”
In his view, the “existence of these asymptomatic multiple
hernias further support that the right recurrent inguinal
hernia also was, within a medical probability, already
present before the January 15, 2011, incident and its having
enlarged over the years due to weakening of the tissue.”
Before the hearing on the denial of claimant’s claim,
Bernardo gave a deposition, in which the following exchange
occurred between Bernardo and employer’s attorney:
Cite as 271 Or App 411 (2015) 417
“Q. It was significant to you that [claimant] had preexisting
hernias?
“A. Yes.
“Q. And with regard to that, what does that say about
his muscle wall, the abdominal wall that he has?
“A. Hernias don’t develop randomly, they develop at
known sites of weakness that everyone has. They develop
through a combination of those weaknesses with aging of
tissues and the stresses and strains that everyone goes
through on a day-to-day basis.
“What you see in this patient is that he’s had prior hernias,
he’s had further recurrences, and it suggests that his
tissues, his abdominal wall are not as strong as they could
be.
“Q. And would that weakness then play a role in the
hernia that he developed that preexisted the incident that
occurred at [work]?
“A. Yes.
“Q. Okay. Is that a factor in your rendering an opinion
as well?
“A. Yes.”
A hearing was held before an administrative law judge
(ALJ). At the hearing, employer conceded that claimant’s
work incident was an otherwise compensable injury, and it
amended its denial to assert that the work injury had combined
with a preexisting condition and that the preexisting
condition was the major contributing cause of the combined
condition.
After the hearing, the ALJ issued an order affirming
the denial. In that order, the ALJ noted that Bernardo
had identified the previous right inguinal hernia repair as
a preexisting condition and had concluded that “claimant’s
right inguinal hernia represented a recurrence of the previously
repaired inguinal hernia.” The ALJ concluded that
“the prior hernia and repair was a condition that existed
and was treated prior to the 2011 work incident” and thus
constituted a legally cognizable preexisting condition. In
light of that conclusion, she stated that “claimant’s other
418 Corkum v. Bi-Mart Corp.
contentions regarding the lack of a legally-cognizable preexisting
condition need not be addressed.” The ALJ then
concluded that Bernardo’s opinion established that the work
incident was not the major contributing cause of claimant’s
need for treatment of the combined condition:
“Dr. Bernardo provided several reasons why the preexisting
condition was the primary cause. Dr. Bernardo
explained that hernias develop at known sites of weakness,
and they develop through a combination of those weaknesses
with aging of tissues and the daily stresses and
strains. Claimant had a weakening of the abdominal wall
tissue, as confirmed by the multiple hernias, predisposing
him to develop hernias. A recurrent hernia suggested that
claimant’s abdominal wall and tissues were not as strong
as they could be. That weakness played a role in the development
of claimant’s hernia. The existence of multiple hernias
further supported that the right inguinal hernia was
present before January 2011. The current right inguinal
hernia represented a recurrence of the 1995 hernia and
repair, which to Dr. Bernardo * * * showed a relationship
between having the prior hernia, the prior hernia repair,
and the recurrent hernia. Dr. Bernardo also considered
claimant’s 40 years of smoking to be [a] contributing factor
to the development of hernias and recurrences. In addition,
Dr. Bernardo ruled out the 2011 lifting incident as the
major cause of claimant’s disability and need for treatment.
He stated that the abdominal pressure that resulted from
lifting the smoker would not have by itself resulted in the
right hernia absent the preexisting condition.”
(Record citations omitted.) The ALJ concluded that, because
Bernardo “weighed all the relevant contributing factors, his
opinion is persuasive.”
Claimant sought review by the Workers’ Compensation
Board, arguing that he did not have a combined condition
and that the weakness of his abdominal wall tissues
“was a mere susceptibility which should not have been
weighed in determining major causation.” Claimant noted
that Bernardo himself had described claimant’s abdominal
wall weakness as “predisposing him to develop hernias.”
The board adopted and affirmed the ALJ’s order
with supplementation that addressed claimant’s contention
that his abdominal wall weakness merely made him more
Cite as 271 Or App 411 (2015) 419
susceptible to injury. The board acknowledged that Bernardo
had described claimant’s abdominal wall weakness as “predisposing
him to develop hernias,” but it observed that
“Bernardo also stated that the right inguinal hernia developed
‘due to weakening of the tissue.’ Such an explanation
indicates that claimant’s abdominal wall weakness caused
the right inguinal hernia, and was not merely a predisposition
or susceptibility.” (Record citation omitted; emphases in
original.) The board went on to state that Bernardo’s opinion
indicated that “the hernias that had been treated in 1953
and 1995 had also been caused by claimant’s abdominal
wall weakness.” It concluded that, because that weakness
“had been treated before the 2011 work injury,” it satisfied
the requisites of a preexisting condition. Accordingly, the
board ruled that “claimant’s abdominal wall weakness was
a ‘preexisting condition,’ and, thus, claimant’s right inguinal
hernia was a ‘combined condition.’ ”
On judicial review, claimant argues that the board’s
order is not supported by substantial evidence or substantial
reason. He first challenges the board’s determination that
his abdominal wall weakness was a preexisting condition
that could be taken into account in determining whether
claimant’s otherwise compensable injury was the major contributing
cause of any combined condition from which he
suffered.3 In claimant’s view, the weakness of his abdominal
wall tissue merely made him more susceptible to injury and
did not itself “cause the hernia.” Rather, claimant argues,
“[t]he weakness of the tissues rendered [his] body less resistant
to gravity, coughing, sneezing, lifting, Valsalva maneuvers[
4] and other forces/pressures, making him more susceptible
to a hernia (protrusion) in the first instance and
allowing it to enlarge.” Claimant next argues that, assuming
that his repaired 1995 hernia was a preexisting condition
that contributed to a combined condition, the board erred in
relying on Bernardo’s opinion on major contributing cause,
3 We do not understand claimant to renew his argument, made to the board,
that he did not have a combined condition at all because he did not have any preexisting
condition.
4 A Valsalva maneuver is a forced attempt to exhale with the airway closed,
which causes pressure in the abdomen. Stedman’s Medical Dictionary 1061 (27th
ed 2000).
420 Corkum v. Bi-Mart Corp.
because Bernardo did not know the extent of claimant’s
right inguinal hernia before the work incident. Because the
board did not address that deficiency in Bernardo’s analysis,
claimant asserts, the board’s order lacks substantial reason.
Finally, claimant contends that the board failed to consider
the major contributing cause of the disability resulting from
the combined condition as a separate ground for compensability
from the need for treatment.
Employer responds that the board’s resolution of the
case did not depend on the characterization of the abdominal
wall weakness as a preexisting condition. According to
employer, although Bernardo “discussed the contribution
that claimant’s abdominal wall weakness made to the occurrence
of claimant’s multiple hernias on several occasions,
* * * he did not include the weakness as an independent
contributor when he offered his ultimate opinion concerning
major causation.” Employer cites Bernardo’s statement
that “[t]he presence of that previous hernia and its failure
over time is a significant preexisting condition and in
toto represents the majority cause of the recurrent hernia
on the right side.” Employer acknowledges that the board
determined that claimant’s abdominal wall weakness was a
contributing cause of the combined condition, but it argues
that, reading the board’s order as a whole, it is apparent that
that conclusion was unnecessary to the board’s resolution of
the case, because Bernardo, the ALJ, and the board all considered
the prior hernia and repair to be the relevant preexisting
conditions and to be the major contributing cause of
claimant’s combined condition.
We begin with claimant’s contention that his abdominal
wall weakness should not have been considered a preexisting
condition. In an initial injury claim, the claimant
bears the burden of proving that an injury is compensable.
ORS 656.266(1). Once the claimant establishes a compensable
injury, the burden shifts to the employer to establish
that “the otherwise compensable injury is not, or is no longer,
the major contributing cause” of the claimant’s disability
or need for treatment. ORS 656.266(2)(a). Here, it is undisputed
that claimant suffered a compensable injury. Thus,
employer had the burden to show that claimant had a preexisting
condition and that the preexisting condition—not
Cite as 271 Or App 411 (2015) 421
claimant’s otherwise compensable injury—was the major
contributing cause of claimant’s disability and need for
treatment.5 The board relied on Bernardo’s opinion in concluding
that employer had satisfied its burden on both of
those issues. “Our role on review of the board’s evaluation of
expert medical opinions is to determine whether the evaluation
is supported by substantial evidence, that is, evidence
that, considering the record as a whole, would permit a reasonable
person to make the findings.” The Boeing Company
v. Cole, 194 Or App 120, 123, 93 P3d 824 (2004) (citing ORS
183.482(8)(c)). “To be supported by substantial evidence,
however, the board’s opinion must include a sufficient explanation
to allow a reviewing court to examine the agency’s
action.” Id. at 124 (internal quotation marks omitted).
Whether claimant’s abdominal wall weakness should
have been considered a preexisting condition turns on the
meaning of “susceptible” in ORS 656.005(24)(c). Again,
the statute provides, “For the purposes of industrial injury
claims, a condition does not contribute to disability or need
for treatment if the condition merely renders the worker
more susceptible to the injury.” The term “susceptible” is not
statutorily defined. A dictionary definition, however, provides
a helpful place to start. As pertinent here, Webster’s
defines “susceptible” to mean “of such a nature, character,
or constitution as to admit or permit : capable of submitting
successfully to an action, process, or operation.” Webster’s
Third New Int’l Dictionary 2303 (unabridged ed 2002).
The legislative history of ORS 656.005(24)(c) sheds
additional light on the meaning of the term “susceptible.”
That statute was enacted in 2001 as part of Senate Bill (SB)
485. See Or Laws 2001, ch 865, § 1. Previously, “preexisting
condition” was defined to include any condition that “predisposes
a worker to disability or need for treatment * * *.”
ORS 656.005(24) (1999). One of the authors of SB 485,
Jerry Keene, testified that the intent was to carve out of the
“definition of ‘preexisting condition’ those conditions which
5 This case, like another that we recently decided, “does not require us to
address whether an ‘otherwise compensable injury’ can be the ‘major contributing
cause’ of a combined condition if its contribution to the combined condition is
equal to the contribution from a preexisting condition.” Vigor Industrial, 257 Or
App at 800 n 5. Accordingly, we do not address that theoretical circumstance. Id.
422 Corkum v. Bi-Mart Corp.
do not actively contribute to the disability or need for treatment
* * *.” Tape Recording, Senate Committee on Business,
Labor, and Economic Development, SB 485, Mar 14, 2001,
Tape 49, Side A (statement of Jerry Keene). He stated that
“the distinction turns on the difference between active and
passive contributions.” Id. Keene explained that “traits,
characteristics, [and] asymptomatic conditions such as age,
gender, weight, history of smoking, alcohol use, abuse, family
history, [and] some congenital factors * * * don’t actively
contribute” to disability or need for treatment and would
not be deemed causes under the new law. Id. He added that
conditions that would continue to be deemed causes were
“active, ongoing contributors to damaging the body part
involved, like previous injuries or diseases, degenerative
conditions, diabetes, [inaudible], [and other] conditions that
have their own independent, active pathological impact on
the body part.” Id.
Thus, the text, context, and legislative history of
ORS 656.005(24)(c) show that a condition merely renders a
worker more susceptible to injury if the condition increases
the likelihood that the affected body part will be injured by
some other action or process but does not actively contribute
to damaging the body part. See Murdoch v. SAIF, 223 Or
App 144, 149-50, 194 P3d 854 (2008), rev den, 346 Or 361
(2009) (because the claimant’s diabetes made him unable to
“mount as strong of a response” to trauma caused by other
forces, and did not itself cause that trauma, it had merely
rendered the claimant susceptible to an infection of his toe,
and was not a contributing cause of the need for amputation
of that digit).
With that understanding of the term “susceptible”
in mind, we turn back to the board’s order. In concluding
that claimant’s abdominal wall weakness was a preexisting
condition rather than a susceptibility, the board reasoned
that Bernardo’s statement that claimant’s right inguinal
hernia had enlarged “due to weakening of the tissue” indicated
that the weakness had “caused” the hernia rather
than merely rendering claimant more susceptible to hernias.
The record does not support that determination. The
words “due to” could refer to either an active or a passive
Cite as 271 Or App 411 (2015) 423
contribution to disability or need for treatment. However,
the context in which Bernardo used the words does not support
a finding that the abdominal wall weakness actively
contributed to claimant’s condition. In his deposition,
Bernardo explained that hernias “develop at known sites of
weakness that everyone has. They develop through a combination
of those weaknesses with aging of tissues and the
stresses and strains that everyone goes through on a dayto-
day basis.” Bernardo also noted that claimant’s abdominal
wall was likely not as strong as it is in other people.
Moreover, Bernardo stated in his concurrence report that
the weakening of claimant’s abdominal wall predisposed
him to develop hernias. A reasonable person, viewing the
record as a whole, could find only that Bernardo meant that
the abdominal wall weakness was a passive contributor that
merely allowed the hernia to enlarge, while the “stresses
and strains” of everyday life actively caused the hernia to
enlarge. Nothing that Bernardo said would support a finding
that claimant’s abdominal wall weakness was an active,
ongoing contributor to damaging the area through which
the hernia protruded. It follows that claimant’s abdominal
wall weakness merely rendered claimant more susceptible
to injury, without itself “contribut[ing] to disability or need
for treatment.” Accordingly, the abdominal wall weakness
was not a preexisting condition within the meaning of ORS
656.005(24). The board erred in finding otherwise.
As noted, employer argues that the board’s resolution
of the case did not rely on the characterization of
the abdominal wall weakness as a preexisting condition.
We disagree. In its order, the board expressly stated that
“Bernardo’s opinion supports a conclusion that claimant’s
abdominal wall weakness was a ‘preexisting condition,’
and, thus, claimant’s right inguinal hernia was a ‘combined
condition.’ ” Moreover, given the board’s conclusion that
claimant had a statutory preexisting condition and, thus,
a combined condition, the resolution of the case turned on
whether claimant’s work injury was the major contributing
cause of his disability and need for treatment. Determining
the major contributing cause “involves evaluating the relative
contribution of different causes of an injury or disease
and deciding which is the primary cause.” Dietz v. Ramuda,
424 Corkum v. Bi-Mart Corp.
130 Or App 397, 401, 882 P2d 618 (1994), rev dismissed,
321 Or 416 (1995) (emphasis in original). The board did not
expressly analyze that issue in its order, but it adopted the
ALJ’s opinion and order. In her analysis of Bernardo’s explanation
of his opinion as to the major contributing cause, the
ALJ stated:
“Bernardo explained that hernias develop at known sites of
weakness, and they develop through a combination of those
weaknesses with aging of tissues and the daily stresses and
strains. Claimant had a weakening of the abdominal wall
tissue, as confirmed by the multiple hernias, predisposing
him to develop hernias. A recurrent hernia suggested that
claimant’s abdominal wall and tissues were not as strong
as they could be. That weakness played a role in the development
of claimant’s hernia.”
The ALJ thus acknowledged that the abdominal wall weakness
was a factor in Bernardo’s opinion. Accordingly, we
cannot say that findings about claimant’s abdominal wall
weakness did not influence the board’s resolution of the case.
In light of the board’s erroneous determination that
claimant’s abdominal wall weakness was a preexisting condition,
we must remand to the board for reconsideration.
Because the remaining issues that claimant raises on judicial
review might not arise again on remand, we do not
address them.

Outcome: Reversed and remanded.

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