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In re Compensation of Klutsenbeker11/13/2002
such as "sore back," Piwowar, 305 Or at 496; "low back pain," Freightliner Corp, 163 Or App at 194; and "low back disability," Hill, 178 Or App at 141. Thus, if claimant's "lower back injury" of "unknown" cause was the result of degenerative spine disease or disc herniations, then those herniations were accepted.
As noted above, the board held that Piwowar did not apply and instead examined contemporaneous medical records to determine if they indicated that the acceptance included disc herniations. The board found that claimant's 1986 injury did not result from herniated discs but from a "new incident." The board relied on the opinion of Dunn that claimant had a "definitive exacerbation from a new incident as he was totally asymptomatic from his previous incident." Later examinations after claim closure, however, revealed disc herniations, and, in 1988, Dunn performed a diskectomy. Under Piwowar, this later evidence is relevant; Piwowar allows recovery when the medical condition underlying the accepted symptom or condition is discovered after acceptance, if the underlying condition is the cause of the accepted symptom or condition. 305 Or at 496-98.
The board's determination that the acceptance did not include disc herniations was based on the medical evidence available at the time of the acceptance. Because it did not apply Piwowar, the board did not reach a finding regarding the underlying cause of claimant's 1986 "low back condition" based on all of the medical evidence, including the examinations after acceptance. The board's failure to apply Piwowar, then, led it to disregard evidence that it should have considered in determining whether employer's acceptance included disc herniations. On remand, the board should determine whether, in light of all the evidence, including evidence acquired after acceptance, claimant's 1986 "low back injury " of then-"unknown" cause resulted, in fact, from disc herniations. If it did, the herniations are within the scope of acceptance.
Reversed and remanded for reconsideration of denial of claim to expand employer's acceptance of claimant's 1986 claim.
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