Saif Corp. v. Dunn (In re Comp. of Dunn)

297 Or.App. 206

439 P.3d 1011

In the MATTER OF the COMPENSATION OF David D. DUNN, Claimant.

SAIF Corporation and PeaceHealth Corp - Sacred Heart Medical Center, Petitioners,

v.David D. Dunn, Respondent.

A164104

Court of Appeals of Oregon.

Argued and submitted January 31, 2018.

April 24, 2019

David L. Runner, Salem, argued the cause and filed the briefs for petitioners.

Dale C. Johnson, Springfield, argued the cause and filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

In this petition for judicial review, we are asked to address whether the Workers’ Compensation Board erred in determining that claimant’s congenital bone condition in his foot known as "unfused apophysis" was not a "preexisting condition," within the meaning of ORS 656.005(24), to be considered in determining the cause of claimant’s inflammatory condition known as "apophysitis." Reviewing the board’s order for substantial evidence and legal error, ORS 656.298 ; ORS 183.482(7), (8), we conclude that the board did err, and we therefore reverse and remand the board’s order for reconsideration.

Initially, we set out some relevant legal context. This case presents an issue of statutory construction relating to preexisting conditions in occupational disease claims. ORS 656.802 defines "occupational disease" and also states that preexisting conditions are "deemed causes in determining major contributing cause":

"(1)(a) As used in this chapter, ‘occupational disease’ means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death[.]

"* * * * *

"(2)(a) The worker must prove that employment conditions were the major contributing cause of the disease.

"* * * * *

"(e) Preexisting conditions shall be deemed causes in determining major contributing cause under this section."

ORS 656.005(24), in turn, defines "preexisting condition" for both injury and occupational disease claims:

"(24)(a) ‘Preexisting condition’ means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:

"(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis; and

"(B)(i) In claims for an initial injury or omitted condition, the diagnosis or treatment precedes the initial injury;

"(ii) In claims for a new medical condition, the diagnosis or treatment precedes the onset of the new medical condition; or

"(iii) In claims for a worsening pursuant to ORS 656.273 or 656.278, the diagnosis or treatment precedes the onset of the worsened condition.

"(b) ‘Preexisting condition’ means, for all occupational disease claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment and that precedes the onset of the claimed occupational disease, or precedes a claim for worsening in such claims pursuant to ORS 656.273 or 656.278.

"(c) For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury."

(Emphasis added.) As relevant here, in the occupational disease context, a preexisting condition is one that "contributes to disability or need for treatment." We note that paragraph (24)(c), which states that a condition does not "contribute" if it "merely renders the worker more susceptible to the injury," applies only "[f]or the purposes of industrial injury claims."

The seminal case relating to proof of an occupational disease is Dethlefs v. Hyster Co. , 295 Or. 298, 310, 667 P.2d 487 (1983), in which the court held that a disease is compensable if work activities are the major contributing cause of the disease or its worsening. In Liberty Northwest Ins. Corp. v. Spurgeon , 109 Or. App. 566, 569, 820 P.2d 851 (1991), rev. den. , 313 Or. 210, 830 P.2d 596 (1992), we first drew a distinction between a preexisting condition that contributes to the cause of the disease, and a preexisting condition that is merely a predisposition or that merely renders the work more susceptible but does not contribute to the cause. We held that "[a]ll causes of a disease, as opposed merely to a susceptibility or predisposition, must be considered in determining which, if any, was the major contributing cause." Id. We explained:

"An employer is responsible for a disease that a claimant who has a particular susceptibility or predisposition develops due in major part to conditions at work. The predisposition to disease is not a bar to compensability, if work causes the disease. In that sense, the employer takes the employee as it finds her."

Id.

In Portland Adventist Medical Center v. Buckallew , 124 Or. App. 141, 861 P.2d 380 (1993), we followed Spurgeon , stating that "[t]here is * * * a distinction between the cause of a disease and a predisposition to the development of that disease." Id. at 144, 861 P.2d 380. The claimant in Buckallew had diabetes-related neuropathy that caused a loss of feeling in his foot and that created a predisposition to development of a form of arthritis known as "Charcot’s joint." The employer denied a claim for Charcot’s joint, contending that the claimant’s neuropathy was not merely a predisposition to the development of Charcot’s joint but was, instead, a cause of the disease. But the board found that the medical evidence indicated that the diabetic neuropathy did not cause the condition. Rather, the major contributing cause of the condition was the microtrauma of walking at work. In upholding the compensability of the condition, we concluded that the board’s findings were supported by the evidence and that the claimant’s neuropathy was "but a predisposition to, and not a cause of, his Charcot’s joint." Id .

The legislature first adopted ORS 656.005(24) as a definition of "preexisting condition" in 1995, in response to Spurgeon and Buckallew . See Or. Laws 1995, ch. 332, § 1. That original definition applied to both injury and occupational disease claims, and expressly required consideration of "any injury, disease, congenital abnormality, personality disorder or similar condition that contributes or predisposes a worker to disability or a need for treatment." (Emphasis added.) At the same time, the legislature adopted ORS 656.802(2)(e), stating that "[p]reexisting conditions shall be deemed causes in determining major contributing cause [in an occupational disease claim]." Or. Laws 1995, ch. 332, § 56.

Then, in 2001, the legislature amended ORS 656.005(24) to delete the phrase "or predisposes a worker" from the definition of "preexisting condition." Or. Laws 2001, ch. 865, § 1. The legislature also amended ORS 656.005(24) to its current form, which defines "preexisting condition" differently for injury and occupational disease claims. In the same section of the bill, the legislature added paragraph (24)(c):

"For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury."

The legislature did not change ORS 656.802(2)(e).

In Multnomah County v. Obie , 207 Or. App. 482, 486-88, 142 P.3d 496 (2006), we had the opportunity to consider whether statutory changes since Spurgeon and Buckallew required a different analysis in the context of occupational disease claims involving preexisting conditions. The claim in Obie was for a mental disorder diagnosed as "complex, severe psychological stress reaction to the death of [a] coworker." The claimant had a history of chronic anxiety and depression that made her "vulnerable" to that type of reaction but that the board found had not contributed to her disability or need for treatment. The board concluded that, under ORS 656.005(24)(b), the claimant’s preexisting chronic anxiety and depression could not be considered a preexisting condition in determining the cause of the complex severe psychological stress reaction.

The employer in Obie asked us to conclude that, because the legislature had limited the application of ORS 656.005(24)(c) to industrial injury claims but had retained the requirement in ORS 656.802(2)(e) that "preexisting conditions shall be deemed causes in determining major contributing cause" in the occupational disease context, necessarily, the claimant’s preexisting condition that made her "vulnerable" (but that did not contribute to the cause of a disease) was subject to consideration in assessing the cause of the mental disorder. We rejected that contention, essentially concluding that, despite the statutory changes, the rule announced in Spurgeon remained applicable in the occupational disease context. Citing the definition of "preexisting condition" in ORS 656.005(24)(b), and legislative history that we said showed an intention to eliminate "predispositions" from consideration in the occupational disease context, we held that the claimant’s mere "vulnerability" could not be considered in the causation analysis. Id . at 488-89, 142 P.3d 496.¹

We have since adhered to Obie and have continued to treat Spurgeon and Buckallew as precedent. In Murdoch v. SAIF , 223 Or. App. 144, 146, 194 P.3d 854 (2008), we overturned SAIF’s denial of an occupational disease claim for an infection requiring amputation of the claimant’s toe. We held, citing Obie and ORS 656.005(24)(c), that the claimant’s preexisting diabetic neuropathy and microvascular disease, which made him unable "to mount as strong of a response to these types of insults...