Boise Cascade Corp. v. Katzenbach

WARREN, J.,

dissenting.

I agree with the majority that employer’s acceptance of the wrist strain was not acceptance of a claim for avascular necrosis. Georgia Pacific v. Piwowar, 305 Or 494, 753 P2d 948 (1988). The claim could be and was denied, and claimant had the burden to prove its compensability. He presented no evidence that a discrete traumatic event caused the necrosis.

His theory is that, because employer accepted the wrist strain, it cannot deny that there was a work-related injury. That far, he is correct. He also appears to contend, however, that, because there was an injury, there was a trauma as a matter of law. In that, he is mistaken. Although he is correct that employer cannot deny that there was an injury, that does not resolve the question of whether the injury was traumatic or, if it was, whether the trauma caused the necrosis condition.

The majority erroneously characterizes employer’s acceptance of the wrist strain as an agreement “that a traumatic event had happened.” 104 Or App at 735-36. Employer’s acceptance of the strain condition is only a concession that a work-related injury occurred. An injury is not necessarily a “traumatic event.” In Valtinson v. SAIF, 56 Or App 184, 187, 641 P2d 598 (1982), we explained that one of the distinctions between an on-the-job injury and an occupational disease is that an injury is “sudden in onset.” “Sudden in onset” is not equated with instantaneous; it may occur during a discrete period of time. 56 Or App at 188; accord: Donald Drake Co. v. Lundmark, 63 Or App 261, 663 P2d 1303 (1983), rev den 296 Or 350 (1984). By accepting a claim for a work-related injury, an employer does not necessarily agree that a traumatic event occurred.

The medical evidence is that avascular necrosis could be caused by trauma. The problem with the Board’s order is that it equated the statutory term “injury” with the medical term “trauma.” The Board did not decide whether the accepted injury was traumatically. caused or whether, if so, trauma caused the separate necrotic condition. Those issues were not necessarily resolved by the employer’s acceptance of the wrist strain. I would remand for findings on those issues.

Accordingly, I dissent.