Torres v. SAIF ( 2022 )


Menu:
  •                                       408
    Argued and submitted December 17, 2021, affirmed August 24, 2022
    In the Matter of the Compensation of
    Guillermo Torres, Claimant.
    Guillermo TORRES,
    Petitioner,
    v.
    SAIF CORPORATION
    and Torres Farms - Torres Contracting,
    Respondents.
    Workers’ Compensation Board
    1800074; A174136
    516 P3d 735
    In this combined condition case, claimant seeks review of the Workers’ Com-
    pensation Board (board) order upholding SAIF’s denial of claimant’s injury claim
    for a left foot condition. Claimant argues on review that the board erred by con-
    cluding that his otherwise compensable injury combined with a preexisting dia-
    betic condition and that the work-related injury was not the major contributing
    cause of his left foot condition and need for treatment. SAIF asks the Court of
    Appeals to affirm the order and also raises a cross-assignment of error argu-
    ing that substantial evidence did not support the board’s finding that an other-
    wise compensable injury was at least a material contributing cause of the injury.
    Held: The board properly weighed conflicting medical opinions to determine the
    major contributing cause of claimant’s injury, a process which it explained in its
    order. Thus, the board’s order was supported by substantial evidence and reason.
    Affirmed.
    Aaron E. Clingerman argued the cause for petitioner.
    Also on the briefs was Pancic Law.
    Daniel Edward Walker argued the cause and filed the
    briefs for respondents.
    Before Mooney, Presiding Judge, and Pagán, Judge, and
    DeVore, Senior Judge.*
    MOONEY, P. J.
    Affirmed.
    ______________
    * Pagán, J., vice DeHoog, J. pro tempore.
    Cite as 
    321 Or App 408
     (2022)                            409
    MOONEY, P. J.
    This is a “combined condition” case in which claim-
    ant seeks review of the Workers’ Compensation Board (board)
    order that affirmed the ALJ’s order upholding SAIF’s denial
    of claimant’s injury claim for a left foot condition. Claimant
    assigns error to the board’s conclusions that his other-
    wise compensable injury (1) combined with a preexisting
    diabetic condition to cause the left foot condition and the
    associated need for treatment, and (2) that the work-related
    injury was not the major contributing cause of the combined
    left foot condition and need for treatment. SAIF asks us to
    affirm the order on review and, additionally, raises a cross-
    assignment of error arguing that substantial evidence did
    not support the board’s finding that claimant’s “work activ-
    ities were materially related to his injury claim.” We affirm
    the board’s order in its entirety.
    We review the board’s findings of fact for substan-
    tial evidence and reason. ORS 183.482(8)(c). “Substantial
    evidence exists to support a finding of fact when the record,
    viewed as a whole, would permit a reasonable person to
    make that finding.” 
    Id.
     When reviewing for substantial rea-
    son, “we determine whether the board provided a rational
    explanation of how its factual findings lead to the legal con-
    clusions on which the order is based.” Arms v. SAIF, 
    268 Or App 761
    , 767, 343 P3d 659 (2015).
    Claimant began working as a firefighter for SAIF’s
    insured employer, Torres Farms - Torres Contracting (Torres
    Farms) on August 6, 2017. There is no dispute that before
    that employment began, claimant had been diagnosed with,
    and treated for, diabetes with related complaints of numb-
    ness in his feet. There is also no dispute that claimant’s
    work activities as a firefighter for Torres Farms included
    walking on steep mountain terrain, while wearing boots,
    for several hours per shift. Claimant developed a blister on
    his left foot, which he noticed on August 20, 2017. He worked
    until September 12, when he was no longer able to continue
    due to left foot pain.
    Claimant sought treatment for his left foot condi-
    tion on October 10, 2017, from La Clínica de Nuestra Señora
    de Guadalupe. The records from that encounter reflect that
    410                                                Torres v. SAIF
    he had “a small wound in left foot because of friction with
    his boots.” He was referred to the emergency department
    where he was found to have a “1.5 cm diameter ulcer” on
    the “lateral aspect of the left foot over the fifth metatarsal
    head.” Infection was suspected and he was admitted to the
    hospital. Active infection in the left fifth toe was confirmed,
    and claimant was later discharged with a plan for outpatient
    antibiotics and wound debridement, with the hope of avoid-
    ing surgery. Dr. Stevens, a podiatrist, provided that course
    of treatment, but the infection did not abate and, ultimately,
    on December 13, 2017, Stevens amputated claimant’s left
    fifth toe and accompanying fifth metatarsal, due to osteo-
    myelitis of that toe and metatarsal.
    While claimant was still undergoing outpatient
    treatment, he completed a form requesting workers’ compen-
    sation benefits for a work-related injury, specifically identify-
    ing August 20, 2017, as the date of injury. He also identified
    the blister on his left foot as the injury and attributed that
    injury to his work as a firefighter. SAIF denied that claim
    shortly after the amputation, reasoning that the left foot
    ulcer was “not compensably related to [his] employment.”
    Dr. Curosh, an endocrinologist, performed an inde-
    pendent medical examination at SAIF’s request and con-
    cluded that claimant’s work activities did not significantly
    contribute to the ulcer. She further opined that “the major
    causes of his left foot ulcer were poorly controlled diabetes,
    ill-fitting shoes, failure to check his feet for blisters, failure
    to treat the blister and change shoes, continuing to work
    with a worsening blister, and failure to seek timely medical
    care.” Curosh agreed with SAIF correspondence that stated:
    “[T]he blister combined with the preexisting diabetes to
    cause or prolong treatment in the sense the blister devel-
    oped into a diabetic ulcer * * *. The diabetes actively con-
    tributed to the ulcer and the amputation because it causes
    peripheral neuropathy and diminished sensation. Initially,
    it caused [claimant] to not notice the blister and thus not
    address it * * *. The diminished blood flow compromised
    healing. Additionally, elevated blood sugars from the diabe-
    tes render the tissue more susceptible to bacterial infection.
    It was a combination of the diabetic neuropathy, vascular
    disease, and increased blood sugar levels that led to the
    Cite as 
    321 Or App 408
     (2022)                                  411
    diabetic ulcer and eventual amputation. The work-related
    blister may have precipitated these events, but was not the
    major cause * * * of the eventual ulcer and amputation.”
    Stevens, on the other hand, agreed with correspondence
    from claimant’s counsel that claimant’s work activities were
    the major contributing cause of the left foot condition and
    eventual amputation. He also agreed that claimant’s diabe-
    tes made claimant more susceptible to an infection.
    An injury is compensable when it arises “out of and
    in the course of employment requiring medical services or
    resulting in disability or death” and “if the work is a mate-
    rial contributing cause of the injury.” ORS 656.005(7)(a);
    Coleman v. SAIF, 
    203 Or App 442
    , 446, 125 P3d 845 (2005).
    “However, when an otherwise compensable injury combines
    with a preexisting condition to cause or prolong a disability
    or the need for treatment, the combined condition is compen-
    sable only if the otherwise compensable injury is the major
    contributing cause of the disability or need for treatment.”
    SAIF v. Harrison, 
    299 Or App 104
    , 106, 448 P3d 662 (2019)
    (citing ORS 656.005(7)(a)(B)).
    The claimant has the burden of proving the pres-
    ence of an otherwise compensable injury. ORS 656.266(1).
    However, in combined condition claims,
    “[o]nce the worker establishes an otherwise compensa-
    ble injury, the employer shall bear the burden of proof to
    establish the otherwise compensable injury is not, or is no
    longer, the major contributing cause of the disability of the
    combined condition or * * * the need for treatment[.]”
    ORS 656.266(2)(a). In this case, the board determined that
    claimant had established an otherwise compensable injury
    and that it was a material contributing cause of his need for
    treatment, which shifted the burden to SAIF to prove that
    the otherwise compensable injury, the blister, was not the
    major contributing cause of claimant’s disability or need for
    treatment. Determining the major contributing cause is a
    complex medical question that must be answered through
    expert medical opinion that evaluates “the relative contri-
    bution of different causes of an injury or disease and decid-
    ing which is the primary cause.” Dietz v. Ramuda, 
    130 Or App 397
    , 401, 
    882 P2d 618
     (1994), rev dismissed, 
    321 Or 412
                                               Torres v. SAIF
    416 (1995) (stating rule regarding combined conditions); see
    Harrison, 299 Or App at 112. When reviewing the board’s
    evaluation of medical opinions, “we do not substitute our
    judgment for that of the board”; we determine only whether
    the board’s evaluation was reasonable. SAIF v. Pepperling,
    
    237 Or App 79
    , 85, 238 P3d 1013 (2010).
    Here, the board first determined that claimant car-
    ried his burden to prove an otherwise compensable injury
    was at least a material contributing cause of his need for
    treatment. SAIF argues in its cross-assignment of error
    that that determination is not supported by substantial evi-
    dence. We disagree. The board reviewed both Stevens’s and
    Curosh’s opinions and found that they both supported the
    finding that claimant’s work injury was at least a material
    contributing cause of his need for treatment. Stevens con-
    cluded that the firefighting activities caused the blister and
    the subsequent bone infections which were complicated by
    claimant’s diabetes. Curosh acknowledged that the blister
    itself was developed at work, which supports (or at least does
    not necessarily undermine) Stevens’s opinion that claim-
    ant’s work was a material contributing cause. The board’s
    order relies on the opinions of both medical experts in the
    case and is based on substantial reason. Therefore, we reject
    SAIF’s cross-assignment.
    Next, the board determined that SAIF had proved
    the existence of a combined condition and that the work injury
    was not the major contributing cause of claimant’s need for
    treatment. The board recognized that it was Stevens’s opin-
    ion that claimant’s diabetes did not actively contribute to
    claimant’s foot condition, but only made him more suscep-
    tible to injury, which would make the diabetes insufficient
    as a legally cognizable preexisting condition to categorize
    the claim as a combined condition. Corkum v. Bi-Mart Corp.,
    
    271 Or App 411
    , 422, 350 P3d 585 (2015); Murdoch v. SAIF,
    
    223 Or App 144
    , 149-50, 194 P3d 854 (2008), rev den, 
    346 Or 361
     (2009) (concluding that the claimant’s diabetes hin-
    dered his ability to heal but did not actively contribute to
    the injury and was therefore not a preexisting condition
    for the purposes of a combined condition claim). But, as
    the board explained, Stevens initially described claimant’s
    foot condition as a diabetic ulcer and not as a work-caused
    Cite as 
    321 Or App 408
     (2022)                             413
    blister, which the board identified as a significant inconsis-
    tency within Stevens’s opinion about causation that made
    his opinion less persuasive than that of Curosh. Curosh
    expressly found that claimant’s diabetes actively contrib-
    uted to the injury because it caused his peripheral neuropa-
    thy and diminished sensation. The board was persuaded by
    Curosh’s later clarification, consistent with her opinion as
    originally stated, that the diabetes caused peripheral neu-
    ropathy, diminished sensation, and diminished blood flow,
    and actively contributed to claimant’s need for treatment.
    Ultimately, the board weighed Stevens’s and Curosh’s
    opinions in analyzing the possible causes of claimant’s
    injury to determine the primary cause, and it explained
    that process in its order. Relying on the opinions of both
    medical experts, it found that the blister was an otherwise
    compensable injury that was a material contributing cause
    of the need for treatment. In the face of conflicting medi-
    cal opinions on the question of primary causation, it relied
    upon Curosh because, as it explained, it found her opinion to
    be more thorough and better reasoned and, therefore, more
    persuasive than that of Stevens. The board’s conclusion that
    claimant’s diabetes was a preexisting condition for the pur-
    poses of combined-condition analysis and that the diabetes,
    rather than the work-related blister, was the major contrib-
    uting cause of claimant’s foot condition and need for treat-
    ment was, thus, a logical conclusion based on the evidence
    presented. Substantial evidence and reason support the
    board’s view of the evidence and its ultimate conclusion that
    the combined condition is not covered. Therefore, we reject
    both of claimant’s assignments of error, as well as the cross-
    assignment of error asserted by SAIF. The board’s order is
    affirmed.
    Affirmed.
    

Document Info

Docket Number: A174136

Judges: Mooney

Filed Date: 8/24/2022

Precedential Status: Precedential

Modified Date: 10/10/2024