Vukasin v. Liberty Nw. Ins. Corp. (In re Comp. of Vukasin)

271 Or.App. 142

349 P.3d 636

In the Matter of the COMPENSATION OF Dalice L. VUKASIN, Claimant.

Dalice L. Vukasin, Petitioner

v.Liberty Northwest Insurance Corporation and Oregon Health & Sciences University (OHSU), Respondents.

1101233

1002645

A153002.

Court of Appeals of Oregon.

Argued and submitted Jan. 21, 2015.

Decided May 13, 2015.

Donald E. Beer, Portland,argued the cause for petitioner. With him on the briefs was Merkel & Associates.

Rebecca A. Watkins, Portland,argued the cause for respondents. With her on the brief was Sather, Byerly & Holloway, LLP.

Before LAGESEN, Presiding Judge, and FLYNN, Judge, and DE MUNIZ, Senior Judge.

Opinion

LAGESEN, P.J.

Claimant petitions for review of a decision of the Workers' Compensation Board (the board)¹ upholding respondent insurer's denial of compensability of medical services under ORS 656.245(1)(a). In particular, claimant seeks review of the board's determination that a 2009 ankle surgery was not compensably related to a 2000 workplace ankle injury ; claimant also challenges the amount of her attorney-fee award. Because we conclude that substantial evidence supports the board's finding that claimant's surgery was not directed to any of her accepted conditions,² we affirm the order of the board. We reject claimant's challenge to the attorney-fee award without discussion.

On March 3, 2000, claimant sustained an ankle injury while at her job at Oregon Health & Sciences University (OHSU). As a result of that injury, OHSU's insurer ultimately accepted the following conditions:

right distal tibiofibula sprain; synovitis ; neuroma ; fibular avulsion of the right lateral malleolus; right flexor hallucis longus tenosynovitis ; and chronic tear of the right anterior talofibular ligament (ATFL). Although claimant was diagnosed with peroneal tendonitis on December 19, 2000, she did not request acceptance of that condition by the insurer.³

Claimant was also diagnosed with, and requested acceptance of, chronic instability of the right ankle, but that claim was denied and the insurer's denial was upheld by an administrative law judge.

Almost a decade later, in 2009, claimant requested authorization for surgery. The insurer denied the authorization on the ground that the surgery was to address right ankle instability, a denied condition. Notwithstanding the insurer's denial, claimant underwent the surgery. Following the operation, claimant's surgeon diagnosed her with right ankle instability, peroneal tendonitis, cavus foot, and gastrocnemius equinus, and claimant requested that the insurer amend the acceptance to include the latter three conditions. Her post-acceptance claim was denied.

Claimant sought review, challenging both the insurer's denial of her post-acceptance claim for peroneal tendonitis⁴ and the insurer's compensability denial of the 2009 surgery. For support, claimant relied on the opinions of two medical experts: Dr. Sauvain, claimant's treating physician since 2005; and Dr. Veri, who performed the 2009 surgery. The insurer relied largely on the expert testimony of Dr. Yodlowski and Dr. Woodward.

With respect to claimant's first challenge, the board found that the March 3, 2000, workplace injury was the major cause of claimant's peroneal tendonitis diagnosed on December 19, 2000. However, the board further found that the peroneal tendonitis identified during claimant's 2009 surgery was not the same peroneal tendonitis with which she was diagnosed in 2000. The board explained:

“[T]he March 3, 2000 work accident was the major cause of peroneal tendonitis diagnosed on December 19, 2000. That pathology resolved. Claimant some time later developed a new peroneal tendonitis, perhaps as a result of the instability mechanism Dr. Veri identified.”

But, because claimant was obligated to prove only that the 2000 injury was a “sufficient cause of an instance of peroneal tendonitis,” and because the board found that claimant had met that burden with respect to the peroneal tendonitis diagnosed in December 2000, it ruled that the insurer's denial of that condition must be set aside. (Emphasis added.)

With respect to her second challenge, claimant contended that the 2009 surgery was compensable because it included treatment of two accepted conditions: synovitis and an ATFL tear. The board rejected that challenge. It found that the synovitis treated by the 2009 surgery was not, as a factual matter, the synovitis that was accepted as a result of the 2000 injury. The board also found that the evidence was insufficient to persuade it that the surgery was related to the accepted ATFL tear. The board observed that Veri testified that his surgery addressed the “incompetence” of the ATFL by treating instability; he did not, however, testify that he treated an ATFL tear. The board noted that Veri's assertion that his surgery was related to claimant's 2000 injury was made in response to counsel's representation that “the right anterior talofibular ligament is already an accepted condition.” The board also observed that the right ATFL is not, in itself, an accepted condition; the only accepted condition is a chronic ATFL tear. Accordingly, the board found that Veri's testimony “did not persuasively relate the need [for] surgery to” the ATFL tear accepted by the insurer as a result of claimant's 2000 injury.

Ultimately, the board found that the 2009 surgery was directed at right ankle instability—a denied condition—rather than any accepted condition. See ORS 656.245(1)(a) (medical services compensable for ordinary conditions “caused in material part by” a compensable injury). The board further found that none of the accepted conditions was the major contributing cause of the ankle instability to which the surgery was directed.See id. (medical services compensable for consequential or combined conditions “caused in major part by” a compensable injury). Based on those determinations, the board concluded that claimant had not met her burden of proving that the surgery was compensable. Accordingly, the board upheld the insurer's compensability denial. Claimant now seeks review of that order.

On review, claimant asserts that the board erred in upholding the insurer's compensability denial, on the grounds that (1) the board lacked legal authority to consider whether claimant's previously accepted conditions had “resolved” prior to her 2009 surgery, and (2) the order is not supported by substantial evidence. Claimant essentially argues that, because the 2009 surgery was for peroneal tendonitis, synovitis, and an ATFL condition, and because those conditions were accepted as a result of the 2000 injury, the insurer was required to conclude that the surgery was compensable, notwithstanding the evidence showing that, as a factual matter, the conditions treated by the surgery were not the ones caused by the 2000 injury.

The insurer responds that whether a causal relationship exists between a medical service and a compensable injury is a question of fact and nothing precludes the board from considering whether an accepted condition has resolved as part of that analysis. The insurer asks that the board's order be upheld, arguing that the board made a factual determination that the surgery was not for any accepted condition and that that determination is supported by substantial evidence in the record.

Compensability of medical services is controlled by ORS 656.245(1)(a), which provides that an insurer is responsible for services “for conditions caused in material part by” a compensable injury.⁵ Whether claimant's 2009 surgery was for a condition caused in “material part” by her 2000 workplace injury is a question of fact, see SAIF v. Sprague, 346 Or. 661, 674–75, 217 P.3d 644 (2009), and we review the board's compensability determination for substantial evidence, ORS 183.482(8)(c).

Here, the board found as fact that the conditions treated by the surgery were not the same conditions that had been accepted as a result of claimant's workplace injury, and that finding is supported by substantial evidence. First, Yodlowski offered her opinion that none of the conditions accepted as a result of claimant's 2000 injury would generally be a cause of the 2009 surgery, and the...