Dianne R. Weiker v. Douglas County School District No. 4

Claimant seeks judicial review of an order of the

Workers' Compensation Board (board), which determined

that the medical services requested by claimant were not

compensable under ORS 656.245(1)(a). That statute requires

claimant's self-insured employer to provide "medical services

for conditions caused in material part” by a compensable

injury. Claimant suffered a compensable injury, a traumatic

blockage of the popliteal artery near her left knee, which was

repaired by a popliteal bypass graft and several bypasses of

other arteries to improve blood flow to the graft. Ten years

later, because tests showed that several arteries leading

to the popliteal graft were blocked and there was a lack of

blood flow to that graft, doctors recommended an aortobifemoral

bypass. The board determined that the medical

evidence did not establish that the proposed aortobifemoral

bypass was for any condition caused in material part by the

traumatic blockage of the left popliteal artery. We review

for substantial evidence and errors of law, ORS 656.298(7);

ORS 183.482, and, for the reasons below, we affirm.

The facts are undisputed. In 1999, while claimant,

a school custodian, was setting up some staging, a piece of

the staging fell on her leg. She suffered a fracture to her

left femur just above the knee and a traumatic occlusion of

the popliteal artery at the fracture site—a blockage in the

artery at the knee that connects the femoral artery in the

upper leg to the tibial arteries in the lower leg. Employer

accepted a claim for the left femur fracture and "traumatic

occlusion of the popliteal artery,” and it denied a claim for

peripheral vascular disease—a broad term referring to narrowing

of arteries outside the brain or heart that is associated

with circulatory problems in the limbs.

To treat the popliteal artery occlusion, Dr. Landry

and other doctors replaced the injured portion of the left

popliteal artery with a left popliteal bypass graft. There

was inadequate blood flowing into that graft, however, as a

result of preexisting abnormal narrowing, called stenosis, in

the arteries leading to that graft: the artery directly above

the graft, the left femoral artery, and an artery in the pelvis

area directly above that, the left common iliac artery.

392 Weiker v. Douglas County School Dist. No. 4

The stenosis in those arteries was the result of preexisting

artery occlusive disease—blockages in the arteries—which

was caused by arteriosclerosis, an occlusive disease in which

the blockages or narrowing are the result of the accumulation

of cholesterol plaque. To improve blood flow to the popliteal

graft, doctors did three things to the arteries above

the graft: they performed a femoral-popliteal bypass above

the knee; they performed a bypass from the femoral artery

in the right leg to the femoral artery in the left leg; and they

put a stent in the right common iliac artery. A few years

after the surgery, claimant's claim was closed and she was

awarded partial permanent disability for her left leg.

In 2009, an angiogram showed that claimant had

blockages or narrowing in her arteries (various parts of the

left iliac artery, left femoral artery, and a right tibial artery).

The right iliac stent graft and the right-to-left-femoral graft

were also blocked, though the left femoral-popliteal bypass

graft that had replaced the injured portion of the popliteal

artery was open. At the time, claimant was experiencing

claudication in the left lower leg—a cramping, often during

activity, caused by lack of blood circulating in the leg. The

treating doctor recommended surgery to place an aortobifemoral

bypass, a graft that originates in the abdominal

aorta and has two limbs that go down and connect to the

femoral artery of each leg.

After employer asserted that the proposed surgery

was not causally related to the compensable injury,

claimant requested administrative review before the

director of the Department of Consumer and Business

Services. The department issued a transfer order, under

ORS 656.704(3)(b)(C), to the board for determination of

whether the proposed surgery was related to the accepted

conditions.

An administrative law judge (ALJ) initially considered

the matter, focusing on the opinions of two doctors who

described the relationship between the recommended aortobifemoral

bypass, claimant's injury, and her arteriosclerosis.

Dr. Duncan, who performed a records review on behalf of

employer, explained that "[t]he underlying condition of

arteriosclerosis ha[d] been present for many years” before

Cite as 271 Or App 389 (2015) 393

the 1999 injury. In Duncan's view, "the surgeries done at the

time of the injury restored essentially normal circulation (as

measured by the ankle blood pressure) to the left leg,” and

"[e]verything subsequent [to] that transpired * * * within the

natural history of her disease.” As of 2009, claimant's "femoral

to femoral bypass ha[d] occluded and she * * * had a progression

of the iliac artery occlusive disease.” Duncan further

explained that, because of the blockages in claimant's iliac

arteries, the "inflow to her lower extremity reconstructions

is compromised and this will have a negative effect on the

future patency [i.e., the openness] of the left lower extremity

arterial reconstruction.” Ultimately, Duncan explained that

"[t]he disease that would be treated by the aortobifemoral

bypass is the progression of her long standing, underlying

arteriosclerosis and not the left leg injury.”

Landry agreed with Duncan that "[t]he aortobifemoral

bypass graft is recommended due to significant

arterial disease in the iliac arteries bilaterally” and that

the arterial disease is "the result of chronic atherosclerosis”

rather than the work injury. But he went on to explain that

"the patency of the left femoral-popliteal bypass, which was

placed as a result of the injury, is dependent on adequate arterial

inflow. Thus, preservation of the existing graft, which was

placed as a result of the injury, is best achieved by providing

better arterial inflow through an aortofemoral bypass.”

In considering that evidence, the ALJ described the

question at issue as whether the surgery "was for or directed

to the traumatic occlusion of the left popliteal artery at [the]

fracture site.” The ALJ noted that the parties agreed that

the first sentence of ORS 656.245(1)(a) governed the dispute

because it involved an "ordinary condition,” rather than a

consequential or combined condition. See SAIF v. Sprague,

346 Or 661, 664, 217 P3d 644 (2009) (explaining that

"insurers generally are responsible for medical services 'for'

conditions—that is, ordinary 'conditions'—that are 'caused in

material part' by compensable workplace injuries” but ORS

656.245(1)(a) "sets different standards” for preexisting, consequential,

and combined conditions). Relying on Landry's

and Duncan's statements that the proposed surgery would

address the compromised blood flow to the femoral-popliteal

graft, the ALJ determined that "a preponderance of evidence

394 Weiker v. Douglas County School Dist. No. 4

establishe[d] that the proposed [surgery] is directed to the

accepted popliteal artery injury.”

Employer appealed to the board, arguing that the

"condition” to be treated by the proposed aortobifemoral

bypass is artery occlusive disease, which was not caused in

material part by the traumatic occlusion of the left popliteal

artery. After noting the parties' agreement that the claimed

medical service was " 'for' an 'ordinary' condition,” the board

set out to "determine the 'condition' to which the claimed

medical service * * * relates.” The board determined that

"the 'condition' to which the aortobifemoral bypass relates

is arteriosclerosis/atherosclerosis,” which was not caused by

claimant's left leg injury. While recognizing that there was

also evidence that the "proposed surgery was necessary to

improve and maintain the flow into the femoral-popliteal

graft in the left leg,” the board reasoned that no medical evidence

established "that the surgery is necessary to treat the

accepted condition of 'traumatic occlusion of the popliteal

artery at fracture site.' ” The board also observed that the

popliteal "graft had stayed open and was not occluded” and

that the traumatic occlusion in the popliteal artery had fully

resolved after the initial surgeries. Accordingly, the board

reversed the ALJ's order.

On review, the parties again base their arguments

on the first sentence of ORS 656.245(1)(a). That statute provides,

in part:

"For every compensable injury, the insurer or the selfinsured

employer shall cause to be provided medical services

for conditions caused in material part by the injury

for such period as the nature of the injury or the process

of the recovery requires, subject to the limitations in ORS

656.225, including such medical services as may be required

after a determination of permanent disability. In addition,

for consequential and combined conditions described in

ORS 656.005(7), the insurer or the self-insured employer

shall cause to be provided only those medical services

directed to medical conditions caused in major part by the

injury.”

"[T]o properly analyze claimant's claim, we must determine

first whether claimant has a compensable injury

Cite as 271 Or App 389 (2015) 395

and whether he sought medical services for a condition

that was 'caused in material part by' that injury.” Arms

v. SAIF, 268 Or App 761, 768, 343 P3d 659 (2015). Under

that framework, the parties agree that the compensable

injury here was the traumatic occlusion of the left popliteal

artery1 and that the medical service sought was an

aortobifemoral bypass surgery. Accordingly, there are two

issues on review: (1) whether the traumatic occlusion of the

popliteal artery is the material cause of a condition; and

(2) whether the proposed aortobifemoral bypass is "for”

that condition. SAIF v. Swartz, 247 Or App 515, 525, 270

P3d 335 (2011).

The parties each focus on one of those questions.

Arguing that the board made a legal error in identifying

the condition at issue, claimant sees the first step under

ORS 656.245(1)(a) as determining the condition that was

caused by the compensable injury. Claimant argues that it

is undisputed that the compensable injury, the traumatic

occlusion of the left popliteal artery, "is a material contributing

cause of the grafted popliteal artery.” (Emphasis added.)

Working from that view of the condition, claimant argues

that, because the proposed surgery is "intended to increase

the vascular flow to prevent occlusion of the grafted popliteal

artery,” the surgery is for that condition.

Employer, on the other hand, argues that the

board properly identified the one "condition” that the surgery

was "for.” Employer argues that there was substantial

evidence that the surgery would treat the arterial occlusive

disease (which employer treats as synonymous with

peripheral vascular disease), and thus the board correctly

1 The parties equate the "compensable injury” resulting from the 1999 work

accident as the injury to the left popliteal artery, apparently on the basis that the

injury to the left popliteal artery was the condition that SAIF accepted soon after

the work accident. On review, the parties do not suggest that the board, in analyzing

the compensability of the proposed surgery, should have taken a different

view of the "compensable injury” in light of our recent decisions in Brown v. SAIF,

262 Or App 640, 325 P3d 834, rev allowed, 356 Or 397 (2014); SAIF v. Carlos-

Macias, 262 Or App 629, 325 P3d 827 (2014); and Easton v. SAIF, 264 Or App 147,

331 P3d 1035 (2014). We therefore identify the compensable injury as the injury

to the left popliteal artery, and, in doing so, do not mean to articulate a different

legal standard for determining compensability than the standard articulated in

Brown and the cases following it.

396 Weiker v. Douglas County School Dist. No. 4

identified that as the condition at issue.2 Employer acknowledges

that "Landry did opine that the recommended surgery

was needed to maintain the patency of the 1999 graft,” but

asserts nonetheless, and without further explanation, that

"the 'condition' being treated by the surgery is peripheral

vascular disease.” Given that definition of the "condition,”

employer notes that Landry and Duncan agreed that the

arterial disease was caused by arteriosclerosis, not the compensable

injury.

We start with employer's argument. Although

employer describes the primary inquiry under ORS

656.245(1)(a) as identifying the one condition to which the

surgery relates, employer and claimant share the same

understanding of the term "conditions” in that statute:

Claimant identifies the condition by looking to the "purposes

of the newly proposed bypass,” and employer describes

the condition as what the proposed surgery "is to address” or

what "creat[es] the need for” the surgery. The board followed

a similar path, reasoning that it had to "determine the subject

of the proposed surgery” to identify "the 'condition.' ”

All of those descriptions are generally consistent with our

explanation that, under ORS 656.245(1)(a), "the 'conditions'

are the current conditions for which treatment is sought.”

Swartz, 247 Or App at 525; see also id. at 524 (noting that

the current condition " 'need not be the accepted condition' ”

(quoting SAIF v. Martinez, 219 Or App 182, 191, 182 P3d

873 (2008)).3

2 We note that the board more particularly identified "arteriosclerosis/

atherosclerosis” as the condition "to which the aortobifemoral bypass relates,”

but the board also endorsed statements by Landry and Duncan that the surgery

would treat claimant's arterial occlusive disease.

3 The parties do not advance—and the board did not rely on—a more specific

definition of the term "conditions” in ORS 656.245(1)(a), which is not defined

by statute. When considering the term "condition” in a related statute, we have

observed that the "ordinary meaning” of that term is the "physical status of

the body” or of a part of the body. See Young v. Hermiston Good Samaritan, 223

Or App 99, 105, 194 P3d 857 (2008) (explaining that "the plain, natural, and

ordinary meaning of the word 'condition' is 'the physical status of the body as a

whole * * * or of one of its parts,' ” in considering the term "medical condition” in

ORS 656.267(1) (quoting Webster's Third New Int'l Dictionary 473 (unabridged

ed 2002)). Assuming that particular definition applies here, it does not provide

support for employer's view that "arterial occlusive disease” is the only condition

treated by the surgery.

Cite as 271 Or App 389 (2015) 397

Given that agreed-upon understanding of the term

"conditions,” employer does not offer a coherent answer why

the only condition to be considered here is "arterial occlusive

disease” in the iliac arteries. If we think of "conditions”

as what the proposed surgery is meant "to address,”

as employer suggests, the record shows that the surgery

would treat multiple conditions. Landry explained that

"[t]he aortobifemoral bypass graft is recommended due to

significant arterial disease in the iliac arteries,” but also

explained that the bypass was recommended "in order to

maintain the patency of the left leg graft, which was placed

as a result of the work injury.” Duncan, too, explained that

"[t]he disease that would be treated by the aortobifemoral

bypass is the progression of her long standing, underlying

arteriosclerosis,” but also offered his view that the surgery

would increase inflow of blood to the "left lower extremity

arterial reconstruction,” and would therefore keep the popliteal

graft open.

That view is consistent with ORS 656.245(1)(a),

which speaks to "conditions” and does not require that particular

medical services can only be "for” a single condition.

Indeed, the Supreme Court has made clear that medical services

may treat a medical condition even if "those services

also provide incidental benefits or help to treat other medical

conditions that were not caused by the compensable injury.”

Sprague, 346 Or at 675 (first emphasis in original; second

emphasis added). Thus, in Sprague, the court concluded that

the claimant's gastric bypass surgery would treat a current

arthritic knee condition that was caused by an earlier compensable

knee injury, even if that surgery "also treated [his]

morbid obesity as a necessary incident of effectively treating

his knee condition.”4 Id. The gastric bypass surgery treated

multiple conditions—it treated claimant's obesity (a denied

condition), which, in turn, helped the arthritic knee—but

all that mattered in determining the insurer's responsibility

for that surgery was that it treated a condition, the arthritic

knee, that was caused by the compensable injury.

4 In Sprague, "directed to” and "caused in major part by” were the relevant

standards, under the second sentence of ORS 656.245(1)(a), because the arthritic

knee condition was classified as a consequential condition.

398 Weiker v. Douglas County School Dist. No. 4

As in Sprague, the record here shows that the

proposed bypass surgery would treat multiple conditions.

The surgery would resolve the blockages and narrowing

in the iliac arteries (the occlusive disease in those arteries,

a denied condition) and would, in turn, resolve the

suboptimal flow to the popliteal graft in the left leg, which

created a risk that that graft would occlude. Employer is

therefore wrong to focus only on the occlusive disease in the

arteries—which the parties agree was caused by arteriosclerosis,

not the compensable injury—as the end of the

inquiry under ORS 656.245(1)(a). To the extent that the

board endorsed employer's view that the surgery must relate

to a single condition under ORS 656.245(1)(a), that view was

error. Even if the surgery treated the artery occlusive disease,

which was not causally related to the injury, employer

may still be responsible for medical services to treat the suboptimal

flow to the left popliteal graft, if that condition is

caused in material part by the compensable injury.

The problem for claimant is that there is no evidence

in the record showing that the lack of inflow to the left popliteal

graft and the associated risk of occlusion in the graft

were caused, in material part, by the traumatic injury in

the popliteal artery. Although the popliteal graft was placed

to repair the traumatic blockage in the popliteal artery, the

evidence showed that that graft fully resolved the traumatic

occlusion and was open at the time of the proposed surgery.

The current state of affairs—the reduction in blood flowing

to the graft—was caused by blockages and narrowing

in upstream arteries, which were the result of a buildup of

plaque in those arteries (i.e., arteriosclerosis). Thus, unlike

in Sprague, where one of the conditions treated by the medical

services was caused by the compensable injury, here

the medical evidence shows that the surgery would treat

conditions that had no causal connection to the compensable

injury. For that reason, the board correctly determined

"that the medical evidence is not sufficient to establish that

the proposed aortobifemoral bypass is 'for conditions caused

in material part by the injury.' ”

That brings us to claimant's argument on review.

Claimant attempts to avoid the result reached by the board

by identifying the condition at issue as "the grafted popliteal

Cite as 271 Or App 389 (2015) 399

artery,” noting that it is "undisputed” that the traumatic

blockage of the popliteal artery caused the grafted popliteal

artery, in that the surgical placement of the graft would not

have occurred but for the traumatic blockage. Even if we

assume that the existence of the popliteal graft is a "condition”

caused by the injury,5 the problem is with claimant's

further assertion that the "proposed aortobifemoral bypass

is for the grafted popliteal artery.” As the board observed,

the left popliteal graft did not require repair—the graft

remained open as of 2009—and thus the surgery did not

effect a change of that graft itself. Both doctors explained

that it was the lack of "inflow” to the popliteal graft—the

lack of blood coming from upstream arteries—and the corresponding

risk of a blockage in that graft, that demanded

treatment. Claimant recognizes as much on review, noting

that the bypass operation was intended to "increase the

vascular flow to prevent occlusion of the grafted popliteal

artery.” It follows that, even if we agree that the popliteal

graft was a condition caused by the injury, substantial evidence

supports the board's determination that the surgery

was not for that condition.6

In sum, the board correctly determined that the

proposed aortobifemoral bypass was not "for” any "conditions

caused in material part by” the traumatic occlusion of

the left popliteal artery. If we start by considering the "left

popliteal graft” itself as the "condition” caused by the injury,

5 Claimant's argument suggests that a condition is merely a part of the

body—here, the graft itself—rather than the current status of a part of the body.

That view conflicts with the ordinary meaning of condition and does not align

with the way we and the Supreme Court have described "conditions” under ORS

656.245(1)(a). See, e.g., Sprague, 346 Or at 672 (condition was arthritis in the

knee); Arms, 268 Or App at 768 (condition was degeneration of C6-7 level of spine);

Swartz, 247 Or App at 525 (condition was ongoing low back pain); Martinez, 219

Or App at 184-85 (condition was death of bone tissue in knee).

6 Claimant does not argue that the lack of flow to the popliteal graft is a

consequential condition, meaning that the current condition is a consequence of

the various surgical procedures performed in 1999, which was a consequence of

the compensable 1999 injury. See, e.g., Sprague, 346 Or at 672 (classifying the

claimant's current condition, an arthritic knee, as a "consequential condition”

because the medical evidence showed that the claimant's arthritic knee was a

consequence of a surgery on the knee to repair a torn meniscus, which in turn

was performed as a consequence of a compensable injury, the torn meniscus).

Accordingly, we do not consider any possible causal link between the lack of flow

to the popliteal graft and the surgical procedures performed in 1999.

400 Weiker v. Douglas County School Dist. No. 4

as claimant proposes, the record shows that the bypass surgery

did not address any defect in that graft. And if we start

by considering what the surgery was for, as employer advocates,

the record shows that the bypass surgery would treat

the blockages in the iliac arteries and improve inflow to the

popliteal graft in the left leg, but neither of those conditions

was caused in material part by the traumatic occlusion of

the popliteal artery.

Affirmed.