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Wantowski v. Crown Cork & Seal8/8/2001
Argued and submitted January 3, 2001.
Reversed and remanded for reconsideration.
Claimant seeks review of an order of the Workers' Compensation Board that upheld employer's denial of claimant's aggravation claim for a low back condition. After the Board issued its decision, the Supreme Court established a different test for determining whether an injured worker 's compensable condition actually worsened. See SAIF v. Walker, 330 Or 102, 996 P2d 979 2000. Accordingly, we reverse and remand for reconsideration.
The facts are uncontested. Claimant worked for employer for over 30 years. Between 1976 and 1996, claimant filed a series of workers' compensation claims, each accepted by employer. As a consequence of claimant's compensable workplace injuries, claimant underwent six separate lumbar spinal surgeries. The last sequence of claims included a February 1993 L4-5 disc herniation claim. Following surgery to remove extruded disc material, the claim was closed in July 1994 with an award of 12 percent unscheduled permanent partial disability (PPD) for claimant's low-back injury and 5 percent scheduled PPD for loss of use or function in his right foot. In March 1996, claimant filed, and employer accepted, an aggravation claim for a recurrent L4-5 disc herniation that resulted in further surgery to repair the injury. The aggravation claim was closed in April 1997 and, in September 1997, an order on reconsideration awarded claimant 12 percent unscheduled PPD for his low-back injury.
In April 1998, claimant experienced an acute back strain and returned to his attending physician, Dr. Schmidt. Claimant's strain improved slightly after that visit. However, claimant returned to Schmidt in June 1998 complaining of increased pain in his low back, pain in his right leg and calf, and numbness in his right big toe. Schmidt's file notes from that appointment reveal that claimant's right knee jerk was diminished and that both ankle jerks were absent. Schmidt also noted that claimant developed pain at 45 degrees of straight-leg raising on the right. Schmidt ordered diagnostic testing that included an MRI, a CT scan and an x-ray.
Claimant then underwent a compelled medical examination (CME) that was requested by employer pursuant to ORS 656.325(1)(a). The CME physicians reported a waxing of claimant's symptoms but concluded that no objective evidence existed of an actual worsening of claimant's condition.
After examining claimant's test results, Schmidt referred claimant to Dr. Waldram, a surgeon, to explore the possibility of lumbar fusion surgery. Waldram's physical exam revealed that claimant had a limited back range of motion as well as some dysesthesias and decreased sensation in his right foot. Waldram also noted that claimant's diagnostic tests indicated that claimant suffered from severe degenerative changes at L4-5 and L5-S1 with laminectomy defects at both levels. Waldram concluded that claimant's only reasonable chance of improvement would come through a fusion.
Employer denied claimant's aggravation claim in September 1998. The administrative law judge (ALJ) affirmed the denial. In the opinion and order, the ALJ explained:
"Claimant has not worked since August and may well be less able to work in the broad field of general occupation without undergoing the fusion recommended by [Waldram]. However, I am unable to find objective evidence to support an actual worsening of claimant's compensable condition.
"* * * Now, according to his history, he is unable to work without [a fusion]. Claimant may be worse, but this is based only on what he says, not on objective findings.
"Both [Waldram] and [S
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