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Saif Corp. v. Leland5/19/1999
the surgery.
The Director clearly indicated that he understood the standard of review. In his final order he stated:
"Pursuant to ORS 656.327(2), MRU's order may be modified only if the order is not supported by substantial evidence or for errors of law. Substantial evidence exists to support a finding when the record, reviewed as a whole, would permit a reasonable person to make that finding. Armstrong v. Asten-Hill Co., 90 Or App 200, 752 P2d 312 (1988)." (Emphasis added.)
Employer appears to believe that any evidence supporting a decision in the record is sufficient to survive substantial evidence review. That is incorrect. As the Director stated, citing Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990),
" vidence against the finding as well as evidence supporting it must be evaluated to determine whether substantial evidence exists to support that finding. If a finding is reasonable in light of countervailing as well as supporting evidence, the finding is supported by substantial evidence." (Emphasis added.)
Generally, where the record merely reflects a difference in medical opinion, substantial evidence in the record may support either outcome. See Armstrong, 90 Or App at 206. However, that is not the case if "credible evidence apparently weighs overwhelmingly in favor of one finding and the [agency] finds the other without giving a persuasive explanation." Id. Here, the MRU based its decision on data from six doctors who stated that the surgery was unnecessary because they believed that claimant did not have a herniated disk and who entirely ignored the unrebutted evidence that the surgery revealed that claimant did have a herniated disk. The MRU provided no explanation, persuasive or otherwise, for relying on old and inconclusive data that claimant did not have a herniated disk when new and conclusive data demonstrated otherwise. Cf. Linn Care Center v. Cannon, 74 Or App 707, 709-10, 704 P2d 539 (1985) (under earlier statutory scheme, where post-surgical evidence demonstrates that surgery was in fact needed and beneficial, that information is relevant and should be considered in determining the compensability of medical services).
Here, the final order makes explicit that the results of the actual surgery, the crucial countervailing evidence, were not even considered by five of the doctors. For the MRU to have considered such inadequate medical evidence to be substantial in the face of those actual results was unreasonable. Rohrer, the one physician who did consider postoperative information besides Bert, reported that he used only preoperative radiographic data to determine that the surgery at the L5-S1 level was not necessary or appropriate.
Based on the foregoing, we conclude that the Director both correctly understood and correctly applied substantial evidence review in setting aside the MRU decision.
Affirmed.
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