SAIF Corp. v. Lewis , 170 Or. App. 201 ( 2000 )

WOLLHEIM, J.,

dissenting.

Because I disagree with the majority’s conclusion that ORS 656.005(19) requires that the indications of an injury or disease must be presently verifiable at the time of examination, I respectfully dissent.¹

ORS 656.005(19) provides:

“ ‘Objective findings’ in support of medical evidence are verifiable indications of injury or disease that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm. ‘Objective findings’ does not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable.” (Emphasis added.)

As the majority explains, the plain language meaning of “verifiable” includes “capable of being verified” and “susceptible to the possibility of being either theoretically or actually proved true or false by reference to empirical facts[.]” Websters Third New Int’l Dictionary, 2543 (unabridged ed 1993). Neither meaning requires that verification by the physician take place, only that verification is possible at some time. However, the majority’s interpretation of ORS 656.005(19) requires that the findings of injury be presently verifiable. That interpretation inserts a term — and consequently, an additional requirement — that the legislature did not expressly include in the language of the statute.² That insertion runs counter to the statutory command of ORS 174.010 “not to insert what has been omitted, or to omit what has been inserted.” Contrary to the majority’s conclusion, the language of ORS 656.005(19) contains no requirement that the doctor making the diagnosis actually observe or verify the indications of injury during the examination.

The majority’s reasoning builds upon clues and implications to reach the conclusion that the legislature intended to require that the indications of an injury or disease be presently verifiable at the time of the examination. Unfortunately, the express language of the statute provides otherwise.³ The plain language of ORS 656.005(19) does not contain a presently verifiable requirement. If the legislature in fact intended that indications of injury be presently verifiable, then the legislature used the wrong words to convey that intent. Deluxe Cabinet Works v. Messmer, 140 Or App 548, 555, 915 P2d 1053, rev den 324 Or 305 (1996) (if the legislature intends to change a statute, it must use language that, reasonably construed, actually changes the statute). We do not have the authority to rewrite a statute to give effect to what we speculate the legislature intended. See Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188, 550 P2d 422 (1976). (“This court cannot correct clear and unambiguous language for the legislature so as to better serve what the court feels was, or should have been, the legislature’s intent.”). However, that is what the majority opinion does.

I would affirm the Workers’ Compensation Board’s order that concludes that claimant’s “toxic exposure condition” claim is compensable. The facts before us do not present a suspicious situation where a worker claims that he was injured in an unobserved “accident” at work — no one contests the fact that claimant here was exposed to toxic substances at his workplace. Nor is this an instance where a worker is complaining about lower back pain that has no apparent cause. Claimant was exposed to phenoxyherbicides and Stringham noted that claimant’s description of his symptoms, as well as the sudden onset and gradual resolution of those symptoms, is consistent with a case of multiple toxic exposure to chemicals at a low dose. Stringham’s conclusion that claimant’s claim is compensable was based upon claimant’s responses to diagnostic questioning, the fact that those responses fit a medically recognized pattern, and that that pattern was consistent with Stringham’s own prior experiences treating workers exposed to multiple phenoxyherbicides. The Board was correct in relying upon Stringham’s report in reaching its conclusion.

There is no evidence that claimant is attempting to “milk” the workers’ compensation system. Claimant’s claim is for a nondisabling injury. He merely seeks recovery of the medical costs he incurred to treat that injury. Claimant makes no claim for permanent or temporary disability. Claimant did not miss any work. In fact, claimant did as many of us would — continue to work expecting that the symptoms would go away. He sought medical attention only when some symptoms did not disappear within a reasonable time period. Unfortunately for claimant, the majority concludes that he waited too long. If claimant had visited his doctor earlier, and the doctor had actually verified claimant’s irritated eyes, sinus congestion and bright yellow phlegm and sputum, claimant’s claim would have been compensable. But because claimant hesitated, the majority concludes that the workers’ compensation system must declare his claim noncompensable.⁴ That I cannot accept.

Accordingly, I respectfully dissent.

Deits, Chief Judge, and De Muniz and Armstrong, Judges, join in this dissent.

1 To the extent that the majority’s reasoning could also apply to the ORS 656.005(19) terms “reproducible, measurable or observable,” I would make the same responding arguments. I limit my discussion here to the term “verifiable” for purposes of clarity.

2 Presented another way, the majority’s conclusion essentially changes the language of ORS 656.005(19) to read: “ ‘Objective findings’ in support of medical evidence are verified indications of injury or disease *

3 I must also disagree with the majority’s comment that the legislative history supports the conclusion that it reaches. My review of the legislative history found that it was not conclusive on the issue before us. However, the following exchange between Representative Brown and Representative Mannix, one of the amendments’ sponsors, is enlightening:

BROWN: “On page three, section 19, being non-medically trained, I would assume that there are conditions that are not, you can’t find through x-ray or whatever. But, for example, a headache. Sometimes that is not always determinable. Say I have a headache and I am uncomfortable and I tell that to the doctor. Why isn’t that sufficient evidence that I am in pain and that I have a headache?”

MANNIX: “Well, actually the question is whether or not we have objective findings. And the way the physician can evaluate your headache, by the way they can evaluate headaches through brain scans — it’s serious in those situations — but they can evaluate through those kinds of technologies and see whether or not there is a pattern that is reproducible. They can also run a variety of tests on your head. The most simple examination that a physician can carry out, and I am not pretending to be a physician, I’m just speaking off hand here, is, they can ask about the pain pattern. And if the pain pattern that you report, and then they can inquire at another time again, ‘Where is the pain pattern? And the pain pattern that you report is consistent with an accepted form of headache. They can also do things as evaluate your physical movements, they can inquire, putting it all together. At some point a physician can verify, ‘This appears to be a legitimate headache.’ And usually that won’t be a very serious issue. But if someone says they have chronic headaches, then they could start running MRI scans of the brain and everything else to try to document what the causation is.” Tape recording, House Labor Committee, SB 369, March 1,1995, Tape 38, Side B (emphasis added).

I understand Representative Mannix’s comments to explain that subjective responses to diagnostic questioning that fit a medically recognized pain pattern are included within the definition of objective findings. Such responses formed the basis of Dr. Stringham’s medical conclusions.

4 Employer’s “medical speculation of a work-related cause” argument is merely an attempt at an end-run around the substantial evidence standard. See SAIF v. Valencia, 148 Or App 263, 939 P2d 623 (1997) (discussing substantial evidence). Stringham concluded that the symptoms claimant suffered were the result of acute exposure to toxic chemicals at the workplace. The Board expressly found Stringham’s reasoning and conclusions more persuasive than those of the other doctors who examined claimant. The Board’s decision is supported by substantial evidence. See Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988) (in workers’ compensation cases, if there are doctors on both sides of a medical issue, whichever way the Board finds the facts will probably have substantial evidentiary support). I see no reason to disturb the Board’s causation determination.