In the Matter of the Compensation of Barbara J. DeBoard, Claimant

Claimant seeks review of an order of the Workers’

Compensation Board that upheld employer’s denials of her

claim that employer add to her accepted 2012 injury claim

the new or omitted condition of disc “protrusions” in the

thoracic spine. The board adopted the determination of the

Administrative Law Judge (ALJ) that claimant’s undisputed

disc pathology of the thoracic spine was a degenerative

disc “bulges” condition that is not “equivalent” to disc

“protrusions,” and that claimant, therefore, failed to prove

the existence of the claimed condition. Claimant argues that

the board erred in relying on the diagnosis for the bulge

condition as the basis for upholding employer’s denials. We

conclude, however, that the board found as a factual matter

that the diagnoses describe distinct conditions and that

the “disc bulge” condition from which claimant suffers is

not encompassed within the scope of her claim for a new

or omitted condition of “disc protrusions.” We also conclude

that those findings are supported by substantial evidence

and, accordingly, affirm.1

The historical facts are not in dispute and are

taken from the board’s findings.2 Claimant has been

employed by Fred Meyer (employer) for more than 13 years

as a bakery manager. In 2001, employer accepted a claim

for a nondisabling thoracic strain. Claimant sporadically

sought treatment for thoracic pain over the next decade,

but, just before the 2012 injury incident, claimant’s back

was “fine.” The compensable injury at issue here arose

from lifting incidents on the day before Thanksgiving,

2012. First, claimant was stacking items when she felt a

sharp pain in her mid-back. Then, later that day, claimant

was lifting cases of pumpkin pies when she felt upper

thoracic symptoms. Employer accepted the claim for a disabling

thoracic strain.

1 Given our affirmance of the board’s decision that claimant did not prove

the existence of the claimed condition, we do not reach claimant’s challenge to an

alternative holding of the board that, “[e]ven assuming that claimant established

the existence of the claimed conditions,” she did not prove that the conditions

were compensable.

2 Because the board adopted the ALJ’s findings, we refer to all findings as

those of the board.

734 DeBoard v. Fred Meyer

Three months after the injury, claimant’s treating

doctor, Bolstad, ordered a thoracic MRI that showed what the

radiologist described as “disc protrusions” at three of claimant’s

thoracic discs: “mild” and “slight” protrusions at T6-7

and T8-9, and a “moderate” protrusion at T7-8. Claimant

submitted a claim for a “new or omitted medical condition”

of “T-6 disc protrusion [and] T-7-8 disc protrusion with

cord compression [and] T-8-9 disc protrusion.”3 Employer

denied the claim, and claimant requested a hearing.4 The

ALJ upheld employer’s denial on the ground that claimant

had not proven the existence of the claimed new or omitted

condition of disc “protrusions,” and the board adopted and

affirmed the ALJ’s findings.

The evidence at the hearing included the opinions

of four doctors who commented on the nature of claimant’s

thoracic disc condition. Because the wording of those opinions

forms the basis for the parties’ dispute, we quote extensively

from those opinions where pertinent. Arbeene, whose

opinion the board primarily relied upon, is an orthopedic

surgeon who examined claimant at employer’s request. He

reviewed the MRI image and described it as showing “multilevel

degenerative disc disease changes in the mid thoracic

disc spaces.” He concluded that claimant’s “disc abnormalities”

were likely caused by non-work-related degenerative

processes. Later, Arbeene agreed with a summary of his

opinion that had been prepared by employer’s lawyer. He

confirmed that, in his opinion, claimant had “a long history

of thoracic spine symptoms” and “multilevel thoracic

spondylosis and degenerative disc disease.” He agreed that

the conditions had developed gradually over time and were

unrelated “to a specific identifiable event or injury.” Arbeene

did not object, however, to the attorney’s use of “disc protrusions”

throughout the letter.

3 Neither party addresses whether the claim was for a “new” condition or for

an “omitted” condition, nor does either party argue that the distinction would

affect our analysis in this case.

4 Employer later amended its denial of the protrusions claim to clarify that

it was denying that the condition was compensable under an occupational disease

theory as well as under an injury theory. However, claimant did not contend

below or on judicial review that her disc condition is compensable as an occupational

disease, and we do not address the amended denial.

Cite as 285 Or App 732 (2017) 735

In deposition testimony, Arbeene articulated the

distinction that is now at the center of this case. He testified

that the “more appropriate diagnosis and the more accurate

diagnosis is multilevel thoracic spondylosis,” by which he

meant “the presence of disc bulging, not disc protrusions.”5

He acknowledged that “if you ask five different doctors what

they mean by ‘disc bulging’ versus ‘disc protrusions,’ you

might get five different answers.” In Arbeene’s opinion, however,

the two terms refer to separate conditions that differ

both in appearance and etiology. A disc bulge is “very broad

based * * * whereas in a protrusion the height of the disc

bulge or abnormality is basically equal to the base of the disc

bulge.” A bulge, which Arbeene equated with thoracic spondylosis

or general disc disease, arises as a degenerative process,

while a protrusion occurs traumatically. He explained

that claimant’s kyphoscoliosis, or improper curvature of the

spine, causes compression on her vertebrae and discs at the

T6 through T9 levels, “so she has a good anatomic explanation

for this multilevel spondylosis or disc degeneration at

those three thoracic levels.” Thus, “the major cause for the

disc bulges is the degenerative process resulting from her

kyphoscoliosis.”

Rokosz, a neurosurgeon with whom claimant consulted

shortly after the MRI, reported that the MRI shows

“very mild disc degeneration” with a “slight bulge” at T8 and

a “bulge” at T7-8. He “explained to the patient that it can

be very difficult to know where someone’s pain is coming

from, especially in the thoracic spine,” and he recommended

“chiropractic evaluation as they are quite adept at evaluating

and treating rib abnormalities,” which he believed to be

partly causing claimant’s pain.

The other two doctors used the terms “bulge” and

“protrusion” interchangeably. They also recognized that

claimant has degenerative changes in the thoracic spine yet

described her condition as work related. Bolstad opined that,

in addition to Arbeene’s diagnoses of thoracic strain and

spondylosis, she would add “[m]ild central disc protrusion at

T6-7 with mild cord compression, moderate right paracentral

5 The transcriber used “disk” rather than “disc”; for consistency, we continue

to use “disc” without noting the alteration in each instance.

736 DeBoard v. Fred Meyer

disc protrusion T7-8 with moderate cord compression and

right paracentral disc protrusion T8-9.” She also wrote

that an MRI of claimant’s spine from 2008 showed “mild

degenerative change with disc space narrowing at T6-7 and

T7-8” with “[m]inimal posterior disc bulge.” In later reports,

Bolstad opined that claimant’s current condition was due to

“disc protrusions” and that claimant’s injury “is the major

contributing cause for her need for treatment.”

Russo, a pain specialist, reported that the MRI

showed “disc protrusion at T6-7, T7-8, and T8-9.” After

examining claimant, Russo diagnosed “[t]horacic spondylosis

[with] multilevel disc bulges at T7-8, T8-9.” Russo later

wrote that claimant had “disc bulges/protrusions” at “these

levels” and that she had “multi-disc disease,” but that her

“pain, spasm, and symptom interference is in excess of what

would be expected [from] solely a pre-existing degenerative

process.”

The ALJ concluded that Arbeene’s opinion was

“the most detailed, well reasoned and persuasive on the

threshold issue of the ‘existence’ of the claimed disc protrusion

conditions.” The ALJ explained that, although

Bolstad and Russo had diagnosed “protrusions,” or “bulges/

protrusions,” and had at times used the terms interchangeably,

Arbeene had explained the physical details that characterize

different types of disc abnormalities. The ALJ

emphasized that Rokosz had described claimant’s condition

as “bulges,” and the ALJ discounted Russo’s opinion

due to his unexplained shift in diagnosis from “bulges” to

“bulges/protrusions.”

On appeal to the Workers’ Compensation Board,

in addition to adopting the ALJ’s findings and conclusions

regarding the existence of the claimed “disc protrusions”

condition, the board explained that it was persuaded by

“the well-reasoned opinion of Dr. Arbeene” because he “had

a complete and accurate history of claimant’s condition,

including thoracic symptoms that preexisted the compensable

injury,” and had “engaged in a thorough weighing of the

potential causes of the claimed conditions.” By contrast, the

board viewed Russo’s and Bolstad’s reports as “not demonstrat[

ing] the same level of awareness of the preexisting

Cite as 285 Or App 732 (2017) 737

symptoms” and not “as well-reasoned and explained” as

Arbeene’s opinion.

On judicial review, claimant contends that the

board “erred in distinguishing between the terms disc ‘protrusion’

and disc ‘bulge.’ ” Relying on cases in which we have

rejected the need for “magic words” to prove the compensability

of workers’ compensation claims, claimant argues that

she proved that she suffers from a thoracic disc condition

that was not part of the original acceptance and that she did

not need to prove a specific name or diagnosis for that condition

in order to prove that it is a new or omitted condition.

Employer responds that the difference between the diagnosis

of disc bulges and the diagnosis of disc protrusions is not

just a matter of labeling claimant’s condition but is, instead,

a factual distinction that determines whether claimant suffers

from the condition for which she claimed compensation.

Both parties are correct to an extent.

Claimant is correct that, for a new or omitted condition

claim, ORS 656.262(7)(a) and ORS 656.267 require

the claimant to give notice of conditions for which compensation

is sought but “do not require notice of diagnoses.” Labor

Ready v. Mogensen, 275 Or App 491, 498, 365 P3d 623 (2015),

rev den, 360 Or 235 (2016) (emphasis in original). However,

whether a condition is encompassed within the scope of the

new or omitted condition claim is a question of fact. Id. at

497. Moreover, whatever the diagnosis, the claimant bears

the burden of proving by a preponderance of the evidence

that a claimed new or omitted condition exists, and proving

the existence of new symptoms is not enough. De Los-Santos

v. Si Pac Enterprises, Inc., 278 Or App 254, 258, 373 P3d

1274, rev den, 360 Or 422 (2016).

Our decisions in De Los-Santos and Labor Ready

provide useful guidance for our review of the board’s order

in this case. The claimant in De Los-Santos had an accepted

claim for a back strain and then filed a new or omitted

condition claim for “radiculopathy/radiculitis,” which the

employer denied. 278 Or App at 255-56. The board found

that the claimant had failed to prove that the claimed condition

existed, and the claimant argued that the board’s

conclusion was contrary to our cases that have allowed

738 DeBoard v. Fred Meyer

claimants to prove an initial compensable injury by proving

only work-related symptoms. Id. at 258; see, e.g., Horizon Air

Industries, Inc. v. Davis-Warren, 266 Or App 388, 392, 337

P3d 959 (2014) (affirming board decision that claimant could

prove compensable injury without proving that work exposure

“resulted in a specifically diagnosable medical condition”).

On review in De Los-Santos, we emphasized that the

rule is different when the claim is for a new or omitted condition.

278 Or App at 258. We also emphasized that we did

“not understand the board’s holding that a claimant must

prove the existence of a claimed new or omitted condition to

encompass a holding that the claimant must do so through

evidence of a specific diagnosis.” Rather, the board properly

required the claimant “to prove the existence of the new or

omitted condition that she asserts should be accepted.” Id.

The claimant in Labor Ready filed a new or omitted

condition claim for “complex regional pain syndrome” (CRPS

I) based on continuing pain in his finger, part of which had

been severed in a previously accepted workplace injury. 275

Or App at 492. The employer denied the claim, and, after

subsequent examinations, the parties agreed that the correct

diagnosis for the claimant’s condition was “CRPS II,”

which involved nerve damage, unlike CRPS I. Id. at 493-94.

The employer argued to the board that it “lacked authority

to address the compensability of CRPS II” because that condition

was encompassed by neither the claim itself nor the

employer’s denial. Id. at 494-95. The board disagreed, concluding

that the original claim for “complex regional pain

syndrome” was broad enough to encompass the claimant’s

eventual diagnosis of CRPS II. Id. at 495-96.

On review, we affirmed the board. We explained

that the scope of a claim and of a denial is a factual determination

reviewable for substantial evidence, and that the

board’s findings were supported by substantial evidence. See

id. at 497-98. We noted specifically that “a reasonable interpretation

of the medical record is that CRPS II is a form of

‘complex regional pain syndrome,’ ” and we concluded that,

on the record presented, “the board could find that the source

of claimant’s symptoms, ultimately diagnosed as CRPS II,

is the same condition for which claimant originally sought

acceptance.” Id. at 498-99.

Cite as 285 Or App 732 (2017) 739

We affirm the board here for essentially the same

reasons that we affirmed the board decisions in Labor Ready

and De Los-Santos. Here, the board’s conclusion turns on

its finding that claimant suffers from the condition of “disc

bulges,” which is a degenerative condition and is not “equivalent”

to the condition of “disc protrusions.” Given the board’s

express finding that the disc conditions are not “equivalent,”

we reject claimant’s contention that the board improperly

focused on magic words, or required claimant to prove a

specific diagnosis for her disc pathology, when it upheld the

denials. Cf. Freightliner Corp. v. Arnold, 142 Or App 98, 105,

919 P2d 1192 (1996) (“An expert’s testimony need not be

ignored merely because it fails to include ‘magic words’ such

as ‘major contributing cause.’ ”). Rather, we understand the

board to have held as a factual matter that claimant had

failed “to prove the existence of the new or omitted condition

that she asserts should be accepted.” De Los-Santos, 278 Or

App at 258. Conversely, the board found as a factual matter

that the disc condition that does exist is beyond the scope of

the claim for acceptance of a new or omitted condition. Cf.

Labor Ready, 275 Or App at 499.

We review those findings to determine whether

they are supported by substantial evidence, which means

that “the record, viewed as a whole, permits a reasonable

person to find as the board did, in the light of supporting

and contrary evidence.” SAIF v. Williams, 281 Or App 542,

543, 381 P3d 955 (2016) (internal quotation marks omitted).

Moreover, in reviewing the board’s “evaluation of expert

opinions, we do not substitute our judgment for that of the

board; rather, we determine whether the board’s evaluation

of that evidence was reasonable.” Id. at 548 (internal quotation

marks omitted). Applying that standard, we affirm.

The board primarily relied on the opinion of Arbeene

to support its findings that a condition of disc “bulges” is distinct

from a condition of disc “protrusions,” and that claimant

suffers from disc “bulges,” not “protrusions.” The board’s

findings are a reasonable interpretation of the medical evidence.

Although Arbeene was the only doctor to make the

distinction, the board accepted his opinion because he persuasively

explained that bulges describe a degenerative disc

pathology while protrusions describe a pathology that occurs

740 DeBoard v. Fred Meyer

traumatically, because he gave the most detailed explanation

of claimant’s spinal pathology, and because he discussed

a more complete history of claimant’s symptoms. Arbeene’s

acknowledgement that some doctors use the terms “bulge”

and “protrusion” interchangeably does not undermine the

board’s ability to rely on Arbeene’s opinion that the conditions

are distinct. See SAIF v. Walker, 260 Or App 327, 338,

317 P3d 384 (2013) (“In a case involving conflicting medical

evidence, we will reverse the board only when the credible

evidence apparently weighs overwhelmingly in favor of one

finding and the [b]oard finds the other without giving a persuasive

explanation.” (Internal quotation marks omitted.)).

Thus, the board could find that claimant had failed to prove

the existence of a condition for which she sought compensation.

6 See De Los-Santos, 278 Or App at 258 (although a

claimant need not prove a specific diagnosis, a claimant is

“required to prove the existence of the new or omitted condition

that she claims should be accepted”); cf. Labor Ready,

275 Or App at 499 (affirming the board’s factual determination

that the ultimately diagnosed condition was the same

as the claimed condition).



* * *



6 We note that, after the board’s order in this case, claimant filed a claim

for a new or omitted condition of “disc bulges.” Relying on the evidence that the

2012 work injury caused disability and a need for treatment of that condition,

the board ordered employer to accept that condition. See Barbara J. DeBoard, 67

Van Natta 909 (2015) (currently under review by Court of Appeals, case number

A159640).

Affirmed.