Johnston v. Gordon Trucking - Heartland Express (In re Johnston)

305 Or.App. 531

471 P.3d 129

In the MATTER OF the COMPENSATION OF Marc R. JOHNSTON, Claimant.

Marc R. Johnston, Petitioner,

v.Gordon Trucking - Heartland Express, Respondent.

A164266

Court of Appeals of Oregon.

Argued and submitted October 5, 2018

July 15, 2020

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

Trisha D. Hole argued the cause and filed the brief for respondent.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore On judicial review of an order of the Workers’ Compensation Board, claimant challenges the board's denial of his occupational disease claim for lumbar arthritis and degenerative disc disease. The board determined that claimant had not met his burden of proving that employment conditions were the major contributing cause of those conditions. The board's conclusion rests largely on two findings. First, the board found that "claimant's aging process, contributed to by his genetics, was an active, ongoing contributor to the development" of the arthritis and degenerative disc disease. Second, the board found that medical evidence suggesting that claimant's work activities also contributed was not "sufficiently persuasive" to establish the existence of a compensable occupational disease. On judicial review, claimant argues that the board erred in failing to recognize that, once claimant came forward with evidence to support his contention that work activities were the major contributing cause of his lumbar arthritis and degenerative disc disease, the burden shifted to employer to establish that other causative factors outweighed the contribution from work activities. Claimant also contends that the board erred in viewing aging as a nonwork-related factor because, "[a]s one ages, one has more work exposure." Finally, claimant argues that the board erred in weighing "genetics" as a factor in the analysis of major contributing cause. We reject each of those arguments and, therefore, affirm.

We describe the historical facts in keeping with the board's factual findings, which claimant does not challenge and which, therefore, are the facts for purposes of judicial review. King v. SAIF , 300 Or. App. 267, 268, 452 P.3d 1039 (2019). Where needed to provide more complete context, we also describe additional uncontroverted evidence in the record that is consistent with the board's findings and conclusions.

Claimant worked as a truck driver for about 35 years. In July 2014, he suffered a compensable lower back injury, later described as a lumbar strain. An MRI performed a few days after the injury revealed previously existing degenerative changes to claimant's spine. Two physicians, Swan and Rosenbaum, opined that the lumbar strain and the preexisting degenerative changes formed a combined condition; they also reported that claimant's work injury was the major contributing cause of his disability and need for treatment of that combined condition. In August 2014, employer accepted a claim for "lumbar strain." Claimant was off work and received treatment for the next several months. In November 2014, Swan declared claimant to be medically stationary without permanent impairment, and he released claimant back to work.

Claimant returned to work, although he was assigned to do a different type of driving than he had done before. In January 2015, claimant visited Swan, reporting increased lower back pain that he associated with work. Swan concluded, based on claimant's history and the type of pain he experienced, that claimant's back pain probably was due to his preexisting degenerative changes. Claimant saw another physician, Ferguson, in March 2015; Ferguson concluded that claimant was unable to continue working because of his "severely aggravated" back. In July 2015, Ferguson opined that the strain associated with claimant's July 2014 injury "had fully resolved" and that "claimant's continued complaints were likely related to degenerative disc disease and *** disc bulges, which developed gradually over time due to an underlying degenerative process."

Claimant then filed the claim pertinent to this judicial review, viz ., an occupational disease claim for lumbar arthritis and degenerative disc disease. Employer denied the claim, contending that claimant's work activities were not the major contributing cause of those conditions. A hearing was held on employer's denial, and we discuss the evidence submitted at that hearing in more detail below. Here, it is sufficient to highlight two aspects of the evidentiary record. In a deposition, Ferguson identified work activity, genetics, and aging as the causal factors of claimant's lumbar arthritis and degenerative disc disease, and he concluded "that a combination of genetics and aging outweighed work activity and was the major contributing cause of" those conditions. Rosenbaum also reported that claimant's work was not the major contributing cause of his lumbar arthritis and degenerative disc disease.

Citing those opinions and additional medical evidence, the board found (1) that "claimant's aging process, contributed to by his genetics, was an active, ongoing contributor to the development of his lumbar arthritis and degenerative disc disease" and (2) that Ferguson's discussion of how work activities contributed to those conditions was not "sufficiently persuasive," noting that Ferguson had stated that it was "impossible to say" whether claimant's work accelerated those conditions and that Ferguson did not have any data to support a view that prolonged sitting and "bouncing/vibration" associated with truck driving contributed to degenerative disc disease and arthritis. In the end, the board found itself "not persuaded that claimant satisfied his burden of proving a compensable occupational disease." It therefore upheld employer's denial of claimant's occupational disease claim.¹

On judicial review, claimant first argues that the board erred when it assigned him the only burden of proof in association with his occupational disease claim. Claimant acknowledges that workers who assert occupational disease claims have the burden to prove that the occupational disease is compensable. See ORS 656.266(1) ("The burden of proving that an *** occupational disease is compensable and of proving the nature and extent of any disability resulting therefrom is upon the worker."). Claimant also acknowledges that an occupational disease is compensable only if employment conditions were the major contributing cause of the disease. See ORS 656.802(2)(a) ("The worker must prove that employment conditions were the major contributing cause of the disease."). Moreover, claimant does not dispute that "[t]he major contributing cause of a disease is the primary cause—i.e. , the cause that contributes more than all other causes combined." Lowells v. SAIF , 285 Or. App. 161, 164, 396 P.3d 241 (2017). Cf. Franke v. Lamb-Weston, Inc. , 165 Or. App. 517, 521, 997 P.2d 876 (2000) (explaining, in a different workers compensation context, that to determine the "major contributing cause" of a condition, "the quantitative contribution of each cause must be weighed to establish the primary cause of claimant's need for treatment").

Thus, claimant ultimately acknowledges, at least implicitly, that he had the burden to prove that his employment conditions contributed more to his disease than all other causes combined. He describes his burden as having to show, by a preponderance of the evidence, "that he suffered the claimed work exposure and injury and *** that it contributed to his condition and is the major contributing cause." Nonetheless, claimant argues that, to the extent that employer contends that factors other than work contributed more to claimant's disease than work did, then employer bore the burden to prove "that claimant in fact has those factors and that they are not work-related." As we understand claimant's theory, it is that, once a worker asserting an occupational disease claim makes a showing—perhaps a sort of prima facie case—that employment conditions were the major contributing cause of the worker's disease, the burden shifts to the worker's employer to prove that any other contributing factors (not employment conditions) were actually the major contributing cause. That is because, according to claimant, "no statute assigns a burden of proof for the nonwork-related factors that are put on the other side of the scale," so the burden must be on the party that wishes to establish the existence of those nonwork-related factors, i.e. , the employer. Cf. Harris v. SAIF , 292 Or. 683, 690, 642 P.2d 1147 (1982) ("The general rule is that the burden of proof is upon the proponent of a fact or position, the party who would be unsuccessful if no evidence were introduced on either side.").

We find no support in ORS chapter 656 for claimant's argument. ORS 656.266(1) and ORS 656.802(2)(a) state plainly that a worker bears the burden to prove the compensability of an occupational disease claim by establishing that employment conditions were the major contributing cause of the disease, i.e. , that work contributed more than all other causes combined. No other statute provides, as claimant suggests, that the burden of persuasion shifts to the employer if the worker makes an initial showing of compensability. And, significantly, the legislature has expressly enacted burden-shifting schemes in other workers’ compensation contexts, suggesting that it would have done so with respect to ordinary occupational disease claims, if that is what it intended. See generally, e.g. , SAIF v. Thompson , 360 Or. 155, 161, 379 P.3d 494 (2016) (explaining that ORS 656.802(4) —the statute creating the firefighters’ presumption for some occupational diseases—shifts the burdens of production and persuasion to the employer once the claimant has proved certain predicate facts).

Nor does prior case law support claimant's argument. The case...