Etchison v. State Accident Insurance Fund , 16 Or. App. 344 ( 1974 )

TANZER, J.

This is a workmen's compensation case. Claimant seeks compensation for an injury allegedly suffered while moving a workbench. In a prior opinion, we held that the act of moving the workbench was within the scope of his employment. Etchison v. SAIF, 8 Or App 395, 494 P2d 455 (1972). The threshold issue on remand was whether the work-related act was the cause of claimant's back problems.

On remand the hearing officer disallowed the claim. That disallowance was affirmed by the Workmen’s Compensation Board. On appeal, the circuit court reversed the order of the Board. It found the injuries to have been caused by the act of moving the workbench and ordered appropriate compensation.

Our review of the record leads us to conclude that claimant has not carried the burden of proof that his back problems are the result of the work-related act. The evidence was carefully analyzed by the hearing officer and we adopt portions of his opinion as our own:

“As the Court of Appeals has pointed out in its opinion, claimant had a previous history of back trouble, and on the day he moved the workbench he did not mention being injured to his employer, although the employer was present, [8 Or App at 400]. The record reflects that in 1960 claimant underwent a lumbar laminectomy following a truck accident. Although the employer was aware claimant was having back problems and going to the doctor in January and February, 1970, lie was not advised until about March 2 that claimant ivas claiming that the back problem was work connected.

“Claimant was receiving medical attention for right lower back complaints a feAV days before the bench moving incident of January 31,1970. He was seen by E. F. Tonn, M.D., on January 16, 1970, witb complaints of left elbow pain, a hand sore and numb, and pain in the upper back in the region of the seventh or eighth rib. When seen on January 19,1970, there was pain in the right lower back, and the right sacroiliac region was manipulated. Dr. Tonn saw claimant again on February 2, 1970, two days after the bench moving incident, and the only additional history was that claimant still had distress. Nothing was mentioned to Dr. Tonn about claimant being hurt in the interval. Claimant returned on February 9, 1970, complaining that his low back was hurting, and manipulation was directed to the fourth and fifth lumbar vertebrae. This sequence of histories and treatment is not corroborative of the occurrence of a low back injury on January 31, 1970.

“It was not until about February 23,1970, when claimant saw an osteopath, that the low back pain was listed as severe. Two days later, on February 25, claimant reported the pain had decreased but there was still soreness in the low back. After February 25 there was an exacerbation, and on March 2 claimant appeared in obvious pain and distress. His condition thereafter did not improve with physical thereapy [sic], and he was referred to an orthopedic surgeon.

“In early April 1970 claimant was hospitalized for myelography and a lumbar laminectomy at L4-5 on the left. The primary complaint preceding the laminectomy involved radiation of pain into the left leg. In the history given to a neurosurgeon on April 9, 1970, the work incident date is moved up to within ‘approximately five weeks ago’ although, in fact, the bench was moved nearly ten weeks before April 9. The neurosurgeon’s report refers specifically to ‘an onset of severe low back pain, left sided’ occurring only about three weeks before the April 9 exam (Claimant’s Exhibit 2). This would place the onset of classical disc symptoms close to the March 2 visit to the osteopath when claimant appeared, in obvious pain and distress. Again, tbe medical histories do not lend much support to the contention that the disc problem was materially caused by the bench moving incident of January 31.

“There is testimony in the record, somewhat equivocal, regarding complaints by claimant about his back after chasing his son and wrestling with him in December 1969 or January 1970. About the 10th or 12th of January 1970 claimant moved his household from Grants Pass to Eogue River, and engaged in carrying household goods. Soon after the move to Rogue River he borrowed a chain saw from the employer to cut some wood. After cutting the wood claimant was ‘stove up’ and could hardly walk.

“The burden of proof rests with the claimant. On consideration of the sequence of medical histories and treatment, as detañed above, the evidence of off-the-job activities close in time to the back complaints, and the background of prior back problems, I find that claimant has not proved that the bench moving incident of January 31,1970, was of material causal significance to the back condition for which surgery was ultimately performed in Aprñ 1970. There was nothing remarkable in the demeanor of claimant and his witnesses to cast doubt on the credibüity of the testimony and my conclusion is not based on demeanor evidence.

“IT IS NOW THEREFORE ORDERED that the denial of the claim be and is hereby approved, and the Request for Hearing is dismissed.”'

Reversed.