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Robinson v. Nabisco9/28/2000
On review from the Court of Appeals.* *Judicial review from the Workers' Compensation Board. 143 Or App 59, 923 P2d 668 (1996).
Argued and submitted November 3, 1997. Reassigned February 3, 1998.
The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings.
DURHAM, J.
In this workers' compensation case, the issue is whether claimant is entitled to compensation for an injury suffered during a compelled medical examination (CME) under ORS 656.325(1)(a) that her employer requested. The Workers' Compensation Board (Board) upheld employer's denial of compensation, and the Court of Appeals affirmed. Robinson v. Nabisco, Inc., 143 Or App 59, 923 P2d 668 (1996). For the reasons stated below, we reverse the decision of the Court of Appeals and the order of the Board, and remand the case to the Board for further proceedings.
The facts in this case are undisputed. In 1981, claimant sustained a compensable low back strain and leg radiculopathy, both on her right side, while working. Between 1981 and 1991, claimant aggravated her back condition several times. Claimant received permanent partial disability benefits and was treated at various times during that period. Claimant has not worked since April 1988. In April 1991, claimant and employer entered into a disputed claim settlement in which employer denied an upper-back injury as a new injury or occupational disease, but continued acceptance of claimant's other conditions as an aggravation of her original 1981 claim.
In June 1992, at employer's direction, claimant participated in a CME with Dr. Watson. During the examination, claimant complained of back pain. Watson directed claimant to raise her legs while lying on her back. Claimant stated that she could not raise her right leg. Watson then asked claimant to raise her left leg. When claimant raised her left leg, Watson moved it to a position beyond the point where claimant had moved it. Claimant felt immediate pain in the left low back and hip area. Medical tests indicated that Watson's maneuver had caused a new injury , specifically, a disc herniation on the left side. Doctors recommended surgical treatment for that injury.
Claimant sought workers' compensation for the treatment and surgery. Employer partially denied the claim, and claimant requested a hearing. In March 1993, claimant underwent surgery with another doctor to repair the disc herniation on the left side.
Before the administrative law judge (ALJ), claimant argued that her CME injury was compensable for either of two reasons, which we identify below. Her compensability arguments concern the application of ORS 656.005(7), which provides, in part:
"(a) A 'compensable injury ' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations:
"(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.
"(B) If an otherwise compensable injury combines at any time with a pre-existing condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury
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