Edwards v. Cavenham Forest Indus. (In re Edwards)

312 Or.App. 153

492 P.3d 750

In the MATTER OF the COMPENSATION OF Jack L. EDWARDS, Claimant.

Jack L. Edwards, Petitioner,

v.Cavenham Forest Industries, Respondent.

A171184

Court of Appeals of Oregon.

Argued and submitted September 1, 2020.

June 3, 2021

Julene M. Quinn, Albany, argued the cause and filed the brief for petitioner.

Brad G. Garber argued the cause and filed the brief for respondent.

Before Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.

KAMINS, J.

Claimant petitions for judicial review of a final order of the Workers’ Compensation Board. In that order, the board determined that medical services, including the prescription of antibiotics and the surgical scrubbing of claimant's prosthetic hip to remove an infection, were not compensable under ORS 656.245(1)(a) because, although claimant's prosthetic hip was the result of a workplace injury, the medical services were directed to the infection, a condition for which claimant had been denied coverage. On review, claimant contends both that the board applied the incorrect legal standard and that the board's order was not supported by substantial reason. We affirm.

The parties do not contest the board's findings of historical fact. "We therefore take the facts from the board's order, supplementing them with consistent facts from the record as necessary." SAIF v. Tono , 265 Or. App. 525, 526 n. 1, 336 P.3d 565 (2014).

In 1980, claimant was working for respondent Cavenham Forest Industries (employer) when he suffered a compensable injury to his right hip and leg in a logging accident. Employer accepted the disabling injury claim and later identified, among other conditions, a dislocated hip and pelvis fracture as accepted conditions (collectively, the "hip fracture"). Claimant underwent a series of surgeries over the next several years to treat the hip fracture, finally culminating in a total hip replacement in 1997.

On September 30, 2017, claimant sought medical treatment for a two-week history of flu-like symptoms, a heart murmur, and right hip pain. He was diagnosed with "sepsis with bacteremia due to streptococcus viridans, and, with regard to the hip, septic arthritis of the right hip, and leukocytosis due to sepsis and hip infection." Claimant's treating physician recommended and performed an emergency debridement of claimant's right hip prosthesis. Claimant subsequently saw an orthopedic surgeon, Dr. Nanson, who diagnosed him with a right hip infection and an inflammatory reaction "due to internal right hip prosthesis" and referred him to an infectious disease specialist. That specialist opined that claimant's infection was likely endocarditis that had "seized" claimant's hip because claimant's flu-like symptoms preceded his hip pain "by a significant period of time." Claimant was prescribed intravenous antibiotics for six weeks and then oral antibiotics for his lifetime.

Claimant requested acceptance of seven "post aggravation new medical condition/consequential conditions" (collectively, the "hip infection"). At his insurer medical examination, claimant saw an infectious disease specialist, Dr. Leggett, who agreed with the diagnosis of bacteremia and prosthetic joint infection and explained that a prosthetic joint is more likely to attract bacteria because "bacteria in the blood stream tend to go where there has been some trauma or where there is a foreign body." Nanson agreed that bacterial infections are at a much greater risk to settle in a prosthetic joint than a nonprosthetic joint. He stated that claimant "would not have required such treatment but for the presence of the right hip prosthesis."

Employer denied all of claimant's claims for the new hip infection condition. Claimant requested a hearing before an administrative law judge (ALJ). The ALJ concluded that the hip infection was not compensable as a "consequential condition" under ORS 656.245(1)(a) because claimant failed to prove that the major contributing cause of the hip infection was the previously accepted condition (the hip fracture).¹ The ALJ also concluded, however, that a sufficient causal relationship existed between the treatment and the original hip fracture to require compensation as medical services for an "ordinary condition" under both ORS 656.245(1)(a) and ORS 656.245(1)(c)(E), which applies to medical services necessary for prosthetic devices.

Employer sought review before the board, which reversed in part and modified in part the ALJ's order, and, ultimately, upheld employer's denial of both the right hip infection as a consequential condition and compensation for the medical services as treatment for an ordinary condition.² In particular, the board determined that the medical services were not compensable because they were for claimant's denied right hip infection, not the original hip fracture. Accordingly, the board reversed the ALJ's order to the extent that it found that the disputed medical services were compensable because they were causally related to claimant's accepted condition.

Claimant petitions for judicial review of the board's decision. On appeal, claimant argues, first, that the board applied the incorrect legal standard in making its determination and, second, that the board's order lacks substantial reason. He contends that the services are compensable as treatment of his original hip fracture, or, in the alternative, as treatment for a consequential condition caused by the original hip fracture.

We review whether the board employed the correct legal standard in applying ORS 656.245(1)(a) for legal error. ORS 183.482(8)(a). We evaluate whether the board's order is supported by substantial reason by determining "whether that order articulates the reasoning that leads from the facts found to the conclusion drawn" and "a reasonable person" could draw the same conclusion. Long v. SAIF , 278 Or. App. 88, 93, 372 P.3d 610 (2016). "The substantial reasoning requirement inheres in our substantial evidence standard of review under ORS 183.482(8)(c)." Id. ; see also ORS 183.482(8)(c) ("The court shall set aside or remand the order if the court finds that the order is not supported by substantial evidence in the record.").

At issue is the board's interpretation and application of ORS 656.245(1)(a). That statute "makes employers (or their insurers) responsible, in certain circumstances, for ‘medical services’ necessary to treat ‘conditions’ that result from compensable workplace injuries." SAIF Corp. v. Sprague , 346 Or. 661, 663, 217 P.3d 644 (2009). Medical conditions are divided into four categories by the workers’ compensation statutes: "(1) ordinary conditions; (2) preexisting conditions; (3) consequential conditions; and (4) combined conditions." Id. Whether the expenses for medical services are covered depends, in part, on what type of condition requires treatment. Id. ORS 656.245(1)(a) sets forth generally when medical services are compensable and how the category of the related condition affects compensability. The first sentence of ORS 656.245(1)(a) provides:

"For every compensable injury, the insurer or the self-insured employer shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires, subject to the limitations in ORS 656.225, [which addresses preexisting conditions,] including such medical services as may be required after a determination of permanent disability."

The second sentence of ORS 656.245(1)(a) provides:

"In addition, for consequential and combined conditions described in ORS 656.005(7), the insurer or the self-insured employer shall cause to be provided only those medical services directed to medical conditions caused in major part by the injury."

Thus, medical services for ordinary conditions "caused in material part by the injury" are generally compensable, and medical services for the three nonordinary categories of conditions are compensable subject to limitations.

The two sentences that form ORS 656.245(1)(a) address different things. See Vukasin v. Liberty Northwest Ins. Corp. , 271 Or. App. 142, 146 n. 5, 349 P.3d 636 (2015) ("The first sentence of the statute governs the analysis for ordinary conditions, and the second sentence governs the analysis for consequential or combined conditions."). The first sentence, which addresses "ordinary conditions,"³ provides that medical services are compensable if they are "for conditions caused in material part by the injury for such period as the nature of the injury or the process of recovery requires[.]" The word "injury" in the first clause of that sentence refers to "the work accident that caused the medical condition and resulted in the need for medical services," and the word "injury" in the second clause refers to "the medical condition that resulted from the accident."

Garcia-Solis v. Farmers Ins. Co. , 365 Or. 26, 39, 42-43, 441 P.3d 573 (2019). Thus, medical services are compensable under the first sentence of ORS 656.245(1)(a) if they are for conditions caused in material part by the work accident, and that compensability extends for however long the nature of the conditions caused by the accident or the recovery from those conditions requires.

The second sentence of ORS 656.245(1)(a) provides that medical services are compensable in certain circumstances "for consequential and combined conditions described in ORS 656.005(7)." ORS 656.005(7), in turn, provides that a consequential condition is one where "the compensable injury is the major contributing cause of the consequential condition." ORS 656.005(7)(a)(A). The word "injury" here appears to refer to the accepted condition, not the workplace accident. See Brown v. SAIF , 361 Or. 241, 261, 391 P.3d 773 (2017) ("compensable injury," as defined in ORS 656.005(7)(a), refers to the accepted condition); Garcia-Solis , 365 Or. at 35, 441 P.3d 573 (assuming that " Brown does interpret ORS 656.005(7)(a)...