Rogers v. Corvel Enter. Comp, Inc. (In re Rogers)

317 Or.App. 116

505 P.3d 1073

In the MATTER OF the COMPENSATION OF Diane M. ROGERS, Claimant.

Diane M. Rogers, Petitioner,

v.Corvel Enterprise Comp, Inc. and TriMet- Tri County Metropolitan Transportation, Respondents.

A174837

Court of Appeals of Oregon.

Argued and submitted November 15, 2021.

January 20, 2022

Jodie Anne Phillips Polich, Milwaukie, argued the cause and filed the briefs for petitioner. Also on the briefs was Law Offices of Jodie Anne Phillips Polich, P.C.

Samuel P. Whalen argued the cause and filed the brief for respondents.

Before Tookey, Presiding Judge, and Aoyagi, Judge, and Armstrong, Senior Judge.

ARMSTRONG S. J.

Claimant, a bus driver for employer TriMet, contracted Influenza A after a work exposure to the virus. She filed a workers’ compensation claim for an industrial injury, which employer denied. In affirming an order of an administrative law judge, the Workers’ Compensation Board acknowledged claimant's work exposure to the flu virus but concluded that claimant had not met her burden to show medical causation—that her work exposure was a material contributing cause of her illness. On judicial review, claimant contends that the board erred in rejecting the opinion of her medical expert based on the lack of a complete medical history.¹

We agree with claimant that the board erred and therefore reverse and remand for reconsideration.

In early February 2019, which was high flu season, despite having been vaccinated, claimant became ill with the flu. The medical evidence is that the flu can be present in any setting where people are present, and that masking and handwashing reduce transmission. Employer's policy prohibited claimant from wearing a mask while driving a bus and, because of the nature of her work, claimant did not have the ability to wash her hands frequently.

Claimant testified that, in her full-time work as a bus driver, she is regularly exposed to passengers who are coughing and sneezing. She testified that, in the days before she began to feel ill, and during the typical four- to six-day incubation period for the flu, she was exposed to passengers who were coughing and sneezing. She also testified that she was exposed to Influenza A at work when she hugged a coworker who was subsequently diagnosed with the illness.

Off work during that same period, claimant ran several errands that included a regular trip to the doctor and quick trips to a department store, a pharmacy drive-up window, and a grocery store. When she developed a high fever, shortness of breath, low oxygen levels, and a severe headache, claimant went to the emergency room and was admitted to the hospital for one night. She was diagnosed with Influenza A. Claimant lost 10 days of work as a result of her illness.

Claimant filed a claim for her illness, which employer denied. In support of her claim at the hearing, claimant presented the opinion of Dr. Cribbs, an occupational medicine physician and claimant's attending physician, who examined claimant after her hospitalization. Employer relied on the opinion of Dr. Leggett, who specializes in infectious diseases and who reviewed claimant's medical records at employer's request.

Leggett stated in his report that "influenza was widespread in the entire Portland community at the time of the onset of [claimant's] illness," and that any time a person was in a public space during that time they were exposed to the flu. Leggett stated that, although it was possible that claimant had contracted Influenza A at work, he could not make that determination on a "more likely than not" basis. Leggett offered the opinion that "[claimant] may have been infected with influenza A either during her days off the Wednesday or Thursday prior to the onset of her illness, or perhaps more likely , sometime during the three days she worked prior to the onset of her illness." (Emphasis added.)

Cribbs was more definitive. He testified by deposition that, although flu is not distinctly an occupational risk, there are studies showing that drivers of public transportation are at increased risk for contracting infectious diseases like the flu because of their close contact with the public. Cribbs, who testified that he does not see a lot of flu in his occupational medicine practice, testified that, with a proper epidemiological investigation, it is possible to determine where someone contracted the flu. In this case, because no epidemiological study had been done, he testified that he could not be certain where claimant acquired her illness, so his purpose was to determine the "likely" cause of claimant's flu.

Cribbs explained that he relied on statistical probability for determining the likely cause of claimant's flu. He explained that his method was to "look at all of the other points of exposure and rank them according to risk." Cribbs was aware of claimant's possible off-work exposures to flu at the department store and doctor's office but he was not aware of (or did not specifically address) claimant's trip to the grocery store. In his view, there was nothing about claimant's off-work activities that put her at greater risk than her exposure as a bus driver. Based on the information that he had, Cribbs believed that claimant's exposure at work was more significant than her off-work exposures. Cribbs concurred in a statement by claimant's attorney that "[claimant's] exposure as a driver * * * was much more likely to be the source of her Influenza A than her exposure as an ordinary Oregonian." And based on the high presence of flu virus circulating in Portland during the time that claimant became sick and claimant's increased exposure to illness in her employment, Cribbs believed that it was more likely than not that claimant's illness had been caused by work exposure. He opined that, "given the sum total of her lifestyle, her typical social interactions and the specific interactions of the preceding week, her workplace exposure was the highest risk exposure during that period." During his deposition testimony, Cribbs agreed with claimant's counsel's statement that "it was more likely than not, based on the totality of the information available to you, that [claimant] was exposed to influenza at work."

In its order upholding employer's denial, the board acknowledged claimant's potential exposure to flu at work and the applicability of the material contributing cause standard of proof in the occupational injury context. The board determined that, because of multiple potential causes, the question of medical causation was a complex issue that required expert medical evidence. The board explained that it rejected Leggett's opinion of medical causation because Leggett had not expressed his opinion in terms of medical probability. The board also rejected Cribbs's opinion, reasoning that it was based on an incomplete history, because Cribbs had not been aware of claimant's trip to the grocery store in the days before she became ill. Having rejected both medical opinions, the board concluded that claimant had not met her burden of proof under ORS 656.266(1) to show that her exposure to flu at work was likely a material contributing cause of her illness.

On judicial review, claimant contends that the board's order is not supported by substantial evidence or substantial reason.

To establish the compensability of her illness as an injury, claimant was required to prove both legal and medical causation by a preponderance of the evidence. Coday v. Willamette Tug & Barge , 250 Or. 39, 440 P.2d 224 (1968) ; ORS 656.266(1).² The only issue in dispute on judicial review is medical causation—whether claimant has established, by a preponderance of the evidence, that her exposure to flu at work was a material contributing cause of her illness. See Schleiss v. SAIF Corp. , 354 Or. 637, 643, 317 P.3d 244 (2013) ("This court has construed the phrase ‘arising out of’ to mean that a workplace injury must be a material contributing cause of disability or the need for medical treatment in order to be compensable."). This case presents a unique...