Gage v. Fred Meyer Stores - Kroger Co. (In re Gage)

329 Or.App. 360

540 P.3d 592

In the MATTER OF the COMPENSATION OF Monika M. GAGE, Claimant.

Monika M. Gage, Petitioner,

v.Fred Meyer Stores - Kroger Co., Respondent.

A177315

Court of Appeals of Oregon.

Argued and Submitted February 14, 2023

December 6, 2023

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

Rebecca A. Watkins, Portland, argued the cause for respondent. Also on the brief was SBH Legal.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

MOONEY, J.

This is an "own motion" workers’ compensation claim on judicial review from the Workers’ Compensation Board (board).¹ Claimant seeks judicial review of the "Second Own Motion Order Reviewing Carrier Closure on Reconsideration," which affirmed the self-insured employer's notice of claim closure without an award for additional permanent disability. The primary issue before the board was whether claimant's facet cyst at L4-5, a newly accepted medical condition initiated after aggravation rights had expired, or any direct sequelae attributable to that cyst, resulted in any additional permanent impairment or work restrictions. After rejecting the report of the medical arbiter panel as "ambiguous," and relying instead on the opinion of an attending physician, the board determined that claimant's facet cyst at L4-5 did not qualify as an additional impairment resulting from a previous, compensable injury. The board, thus, concluded that claimant was not entitled to a redetermination of her permanent disability.

Claimant seeks reversal of the board's order and raises three assignments of error. The first two assignments challenge as unsupported by substantial evidence and reason the board's findings that the arbiter panel opinion was ambiguous, and that an attending physician's report was more accurate and persuasive. In her third assignment, claimant argues that the board's order violates constitutional and statutory provisions by refusing to seek clarification of the ambiguity from the arbiter panel and refusing to obtain another medical arbiter report. We conclude that substantial evidence and reason do not support the board's determinations that the medical arbiter panel's report was ambiguous, and that the attending physician's report was more accurate. We need not, and do not, reach the third assignment of error. We reverse and remand.

We review legal issues for errors of law and factual issues for substantial evidence. ORS 183.482(8)(a), (c) ; SAIF v. Williams , 281 Or App 542, 543, 381 P.3d 955 (2016).

"[S]ubstantial evidence supports a finding when the record, viewed as a whole, permits a reasonable person to make the finding." Garcia v. Boise Cascade Corp. , 309 Or. 292, 294, 787 P.2d 884 (1990). Our review for substantial evidence necessarily includes review for substantial reason because our task is to determine whether the board adequately explained how it got from the factual findings that it made to the legal conclusions that it reached that caused it to issue its order. SAIF v. Harrison , 299 Or App 104, 105, 448 P.3d 662 (2019). We recount the pertinent facts adopted by the board and from claimant's medical records. Harvey v. SAIF , 286 Or App 539, 540, 398 P.3d 944 (2017).

Claimant sustained work-related injuries in 2005 when she slipped and fell at work. She filed a workers’ compensation claim, which her employer accepted in its capacity as claimant's self-insured employer, for various disabling injuries, including right lumbar strain and a herniated L5-S1 disc. Dr. Moore, an orthopedic surgeon, performed two surgeries on the L5-S1 region, and claimant was awarded permanent disability. The claim was closed in December 2012, with claimant's right to claim additional compensation for worsened conditions—her "aggravation rights"—set to expire in December 2017, under ORS 656.273(4)(a).²

In June 2013, an MRI revealed, among other things, a developing cyst at claimant's L4-5 disc level. Dr. Andrews, a physician in Moore's clinical practice who specializes in nonsurgical approaches to conditions of the spine, attempted to treat the cyst by aspiration and injection but those efforts were not successful. Moore then requested authorization for an L4-5 posterior discectomy and laminectomy, but that claim was initially denied.

After it was later determined that the proposed surgery would be compensable, but before the surgery occurred, Moore ordered a second MRI. In June 2015, the second MRI was read and reported as showing that the cyst was no longer present. Because the cyst appeared to have resolved, the employer sought to close the claim.

The employer retained Dr. Ha, an orthopedic surgeon, to perform the closing examination. Ha concluded that claimant's conditions were medically stationary, and that she could perform sedentary or light work. It was his opinion that no further surgical intervention would be required because the 2015 MRI indicated that the cyst had resolved. Andrews concurred, and claimant's claim was closed without an additional permanent disability award.

Moore concluded that the 2015 MRI had not been correctly read or reported by the radiologist. Moore documented that she could "see the cyst very clearly on the sagittal view" of the 2015 MRI study itself. She ordered a follow-up MRI, which was completed in June 2016. That MRI showed a cyst at the L4-5 disc, along with an L4-5 herniation and nerve impingement on both the left and right sides. Moore again requested authorization for an L4-5 discectomy and decompression for the purpose of accomplishing surgical decompression and to excise the cyst. That request was again denied.

Other arrangements were made for health insurance coverage, and Moore performed the surgery without approval from the employer. Upon request for additional information, Moore confirmed that the surgery she performed was the same surgery that she "had proposed in early 2014 to decompress the spine and remove the cyst at L4-5[.]" Reimbursement for the surgery was again denied when the employer determined that the surgery "was directed to claimant's denied bilateral L4-5 lateral recess and foraminal stenosis."

In April 2018, claimant submitted a request to add a new/omitted medical condition claim for the cyst. The employer accepted the new claim which was then reopened for processing. As part of its investigation, the employer sent a check-the-box questionnaire to Andrews asking if he "consider[ed] the L4-5 facet cyst condition to be medically stationary as of, at the latest, June 30, 2015, when a repeat lumbar spine MRI showed ‘[t]he previously documented subligamentous right synovial cyst [was] no longer present.’ "

Andrews checked the "yes" box. He similarly checked the "yes" box indicating that he agreed that the L4-5 cyst did not result in any additional permanent impairment or work restrictions.

A subsequent CT scan showed continued deterioration of the L4-5 region and L5-S1 stenosis. Moore recommended an epidural steroidal injection, which Andrews administered. After two such injections, claimant reported only temporary relief, and Moore recommended an L4-5 decompression and fusion to treat claimant's L4-5 stenosis and spondylolisthesis. Moore performed the surgery in May 2019, and both Moore and Andrews reported that claimant's condition was improved.

In June 2019, the employer issued an Own Motion Notice of Closure that did not award additional permanent disability for claimant's L4-5 synovial cyst. The closure was based on Andrews’ "yes" responses concerning the cyst that we just described. Claimant requested review.

THE BOARD'S REVIEW

On review, claimant requested that the board increase her permanent disability award. Because she contested Andrews’ statements about the cyst, she also requested that the board appoint a medical arbiter under OAR 438-012-0060(6)(a).³ The board referred the case to the Appellate Review Unit (ARU) to appoint the arbiter. The medical arbiter, a panel consisting of three physicians, conducted an examination and reported its findings to the ARU. In its report, the arbiter panel stated that it agreed with Andrews that "the newly accepted condition is not contributing to the noted motion loss in the lumbar spine." It concluded that "it is medically probable the loss of motion *** is related to the herniated disk at L4-L5 and the subsequent surgeries to address th[at] issue." The panel also noted that claimant had been using a walker on a consistent basis since her most recent surgery—the 2019 L4-5 decompression and fusion.

The ARU sent a request for additional information to the arbiter panel:

"In your report you stated the worker stated since her most recent [surgery] she needed to use a walker. For the record, please respond to the following:

"1. Please indicate whether or not the worker is prevented from being on her feet for more than two hours in an 8-hour period , due to the newly accepted condition(s) and direct medical sequela of the newly accepted condition(s). If so, please explain the necessity for this restriction."

(Emphasis, underscore, and boldface in original.) The same panel member who wrote the original report, Dr. Harris, responded on behalf of the arbiter panel. He answered "Yes," and added "Too much pain + lack of motion after numerous surgeries to low back," and that "40% of the need for this restriction is related to newly accepted condition, and 60% is related to other accepted conditions."⁴

The board affirmed the employer's notice of closure. It declined to adopt the arbiter panel's report, finding it to be "ambiguous," and reasoning that the report "was made in the context of, and based on, claimant's statements that she needed to use a walker" since the 2019 surgery. Noting that the 2019 surgery was "performed by Dr. Moore to treat claimant's L4-5 stenosis, which is a denied condition," and that "the medical arbiter panel report erroneously stated that claimant had no denied conditions," the board concluded that there...