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In re Compensation of Kaeo11/13/2002
Argued and submitted April 4, 2002.
Affirmed.
Claimant seeks review of a Workers' Compensation Board order upholding SAIF's denial of his current condition on the ground that claimant's accepted injury is no longer the major contributing cause of his disability or need for treatment. We review to determine whether the order is supported by substantial evidence and whether the board made errors of law. ORS 183.482 7, (8). We affirm.
Claimant worked for the University of Oregon as an electrician. In December 1997, he suffered a low back injury at work. Claimant underwent a compelled medical examination. The examiner diagnosed degenerative disc disease. In March 1998, SAIF issued a denial of claimant's low back injury claim. Claimant underwent surgery for S1 nerve root compression the next month. SAIF's denial of the claim was litigated before an ALJ and the board. The board concluded that claimant's December 1997 injury claim was compensable and that it combined with his pre-existing condition. It also concluded that the compensable 1997 injury was the major contributing cause of the need for treatment of the combined condition. Accordingly, the board set aside SAIF's denial.
On March 1, 1999, SAIF issued an acceptance of claimant's "lumbar strain/sprain." On March 31, 1999, claimant saw his treating surgeon, Dr.Van Pett, who recommended additional surgery at different spinal levels for a right "foraminal decompression at L4-5 and L5-S1." In January 2000, SAIF issued a modified notice of acceptance stating that claimant's lumbar strain/sprain had combined with claimant's "pre-existing S1 left compression secondary to lateral recess stenosis at the L5-S1 level." The notice of acceptance stated that SAIF was "responsible for the combined condition as long as and to the extent that the work injury remains the major contributing cause of the combined condition."
In March 2000, Dr. White conducted a compelled medical examination and diagnosed diffuse lumbar spondylosis with mild spinal stenosis; mild left S1 static sensory-only neuropathy; and chronic low back pain. White concluded that claimant's December 1997 work injury had healed without permanent impairment and that no combined condition existed. On April 14, 2000, claimant underwent an MRI that indicated "no abnormality detected on the left at the L5-S1 at the site of operation." On April 26, 2000, SAIF denied claimant's current condition on the ground that claimant's compensable injury was no longer the major contributing cause of the current condition. In June 2000, a notice of closure was issued awarding claimant temporary disability and nine percent unscheduled permanent disability for the surgery.
Claimant requested a hearing challenging the procedural validity of the denial. He asserted that it should have been only a "partial" denial relative only to the additional surgery recommended by Van Pett at different levels that SAIF had not accepted as a part of the combined condition. The ALJ and, ultimately, the board upheld SAIF's denial, concluding that it was procedurally valid and that there was no persuasive evidence that the compensable injury remained the major contributing cause of the disability or need for treatment of the current condition.
Before this court, claimant again argues that SAIF's denial cannot be upheld as a denial of a previously accepted combined condition. Claimant does not dispute that, under the applicable statutes, an insurer may issue a denial of a previously accepted combined condition. Under ORS 656.262(7)(b), once an employer has accepted a combined condition, the employer, in fact, must issue a written denial when the accepted compensable
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