Dennis L. Corkum v. Bi-Mart Corporation

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.

Reversed and remanded.