 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Jocelyn v. Wampler Werth Farms12/28/1994
COURT OF APPEALS OF OREGON
WCB 92-08595, CA A80290
1994.OR.40782 ; 132 Or.App. 165; 888 P.2d 55
Filed: December 28, 1994.
IN THE MATTER OF THE COMPENSATION OF DONALD W. JOCELYN, CLAIMANT. DONALD W. JOCELYN, PETITIONER,
v.
WAMPLER WERTH FARMS AND LIBERTY NORTHWEST INSURANCE CORPORATION, RESPONDENTS
Martin J. McKeown filed the brief for petitioner
Alexander D. Libmann filed the brief for respondents
Warren, Judge
Claimant seeks review of an order of the Workers' Compensation Board, contending that the Board erred in determining that his aggravation claim is not compensable, because he has not satisfied the requirement of ORS 656.005(7)(a)(B) and shown that the initial compensable injury is the major contributing cause of his worsened condition. We reverse.
Claimant experienced a compensable low back injury in 1987 while working for employer. The injury was diagnosed as a strain, superimposed on a preexisting, non-work related degenerative disc condition. Before and after the 1987 injury, CT scans revealed that claimant had a bulging disc at L4-L5, and that that condition had remained unchanged. Employer accepted the claim and it was closed in 1988. It was reopened in 1989 and 1990 for awards of permanent partial disability.
In March, 1992, defendant was at home when he sneezed while bending over to tie his shoe. He felt immediate sharp pain in his back. Claimant tried to work, but could not. A CT scan revealed increasing disc derangement and herniation at L4-L5. Claimant's doctors recommended a diskectomy and fusion. Claimant filed an aggravation claim under ORS 656.273 for the worsening of his accepted condition, which employer denied. The referee found that the medical evidence shows that claimant's 1987 injury is not the major contributing cause of his current increased disc herniation. The Board, in affirming the referee, held that, because claimant's current condition is caused by a combination of his compensable injury and his preexisting disc condition, he is required to show, pursuant to ORS 656.005(7)(a)(B), that the compensable 1987 injury is the major contributing cause of the worsened condition. The question on review is whether the Board was correct to apply that standard of proof of causation to claims for aggravation under ORS 656.273.
A claimant is entitled to additional compensation for the worsening of an accepted condition, pursuant to ORS 656.273(1), which provides, in part:
"After the last award or arrangement of compensation, an injured worker is entitled to additional compensation,
including medical services, for worsened conditions resulting from the original injury . A worsened condition resulting from the original injury is established by medical evidence supported by objective findings. However, if the major contributing cause of the worsened condition is an injury not occurring within the course and scope of employment, the worsening is not compensable."
The Board held that, because claimant had a preexisting back condition, in order to prove a claim for aggravation under ORS 656.273, claimant had to prove that the accepted compensable injury was the major contributing cause of the worsened condition, pursuant to ORS 656.005(7)(a)(B). That subparagraph provides:
"If a compensable injury combines with a preexisting disease or condition to cause or prolong disability or a need for treatment, the re
Page 1 2 3 4 5 6 7 8 9 Oregon Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|