Franke v. Lamb-Weston, Inc.

EDMONDS, P. J. Claimant seeks review of an order of the Workers’ Compensation Board (Board) that held that claimant had not carried her burden of proving that her current condition is work related. We review for errors of law and for substantial evidence and reverse. ORS 183.482(8). After an appeal by claimant from the administrative law judge’s (AU) order that upheld employer’s denial, the Board adopted and affirmed the ALJ’s order. The ALJ found that on May 25,1995, claimant was injured at work when she experienced neck and shoulder pain as a result of turning over boxes of product. She was treated by various doctors in early June 1995, and Dr. Oltman became her attending physician on June 13. He concluded that claimant had suffered a soft tissue injury with possible nerve irritation, and he prescribed treatment consisting primarily of physical therapy. He released claimant to go back to light work as of July 2, 1995, and employer accepted claimant’s claim as a cervical strain condition. Claimant was still experiencing symptoms in September 1995, and Oltman referred her to a neurosurgeon. As a result of his examination and a MRI, the neurosurgeon suggested treatment by a pain clinic. Claimant declined, requesting instead, a second opinion. Thereafter, she was seen by Dr. Keenen, who concluded that claimant had a cervical strain without evidence of disc herniation. He recommended physical therapy and claimant was taken off work. In November 1995, claimant was evaluated by a panel of examiners. Dr. Laycoe and Dr. Watson indicated that they believed that claimant was suffering from chrome neck pain because of the over-use of her neck. They found no evidence of cellular or intervertebral disk problems. They did note that “functional overlay” was present. Dr. Davies, a psychologist, opined that “secondary gain” factors were present. Claimant returned to work in January 1996. She underwent a second medical examination in April 1996 with Drs. Wilson and Klecan. The AU found, — 520 — “* * * Dr. Wilson speculated claimant could have had an overuse syndrome without objective findings. In his opinion claimant was medically stationary with no further treatment needed and no impairment. The major cause of claimant’s condition, he added, was non-organic findings as opposed to the May 25, 1995 injury. Psychiatrist, Dr. Klecan, found no mental disorder or personality disorder present. Like Dr. Davies, he believed secondary gain factors were operating. Although, agreeing some somatization [1] was present, Dr. Oltman otherwise declined to concur with the IME opinions. “On April 30, 1996, as amended on May 2, 1996, the employer issued a current condition denial on the basis the major cause of the present condition was no longer the May 25,1995 injury.” On May 8, 1996, claimant returned to Keenen, who recommended anesthetic and steroid injections in claimant’s cervical area. Subsequently, Dr. Slack administered several injections to claimant’s spine. Thereafter, claimant rated her pain level as zero on a scale from 1 to 10 in response to Slack’s inquiry after receiving the injections. Before the hearing with the ALJ occurred, Oltman was deposed. Based on Slack’s report regarding the effect of the injections, he opined that claimant’s current condition was a physical result of her work injury. In the part of her opinion labeled “CONCLUSIONS OF LAW AND OPINION,” the ALJ explained her reasoning in arriving at the conclusion that claimant had not carried her burden of persuasion and why she rejected Oltman’s opinion. “On April 4, 1996, Drs. Wilson and Klecan examined claimant. In their respective reports, they concluded claimant’s present condition was subjective only, i.e., not an illness, injury or condition in the usual sense. Dr. Klecan explained nonanatomical and noninjury factors were now operating as the major cause. Prior to closure, and relying on the April 4, 1996 report, the employer issued a current — 521 — condition denial on the basis the accepted May 25, 1995 injury was no longer the major contributing cause of claimant’s chronic condition. ORS 656.262(7)(b). “The evidence establishes claimant sustained a cervical injury on May 25, 1995. Despite extensive medical attention the injury developed into a chronic condition. Improvement has proven to be elusive. Thorough diagnostic testing has not revealed a physical basis for claimant’s continuing symptoms. “Moreover, the medical issue has been compounded by the presence of psychological factors. Although not diagnosing a psychiatric illness or disorder, Dr. Klecan has described the noninjury factors as twofold: (1) a personal style of anxious, somatic over focus, and (2) external rewards coming in response to her anxious somatic over focus. Dr. Wilson described claimant as being very over focused on her somatic complaints. Dr. Keenen’s reports also suggest he does not disagree that a psychosomatic element is present. Even claimant’s attending physician, Dr. Oltman, has acknowledged the presence of some soma-tization. The evidence further supports the finding psychological factors combined with the May 25, 1995 injury to produce a combined condition. “In this regard, ORS 656.005(7)(a)(B) provides that if a otherwise compensable injury combines at any time with a preexisting disease or condition to cause or prolong disability or the need for treatment the combined condition is com-pensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition. Under the statute, the quantitative contribution of each cause must be weighed to establish the primary cause of claimant’s need for treatment. SAIF v. Nehl, 148 Or App 101, on recon 149 Or App 309 (1997). “The preponderance of the evidence establishes claimant’s current cervical condition is not supported by objective findings of a physical injury. This is the assessment of the doctors who have examined claimant. Even assuming, the presence of residuals from the May 25,1995 injury, the evidence is not convincing the injury remains the major contributing cause of claimant chronic cervical condition. — 522 — Rather, the evidence points to psychological factors in explaining claimant’s current condition. “In contrast, it was the opinion of Dr. Oltman [that] claimant’s continuing symptoms were due to a physical as opposed to psychological condition based on the fact claimant showed improvement] after being injected by Dr. Slack in late May 1996. In his deposition Dr. Oltman stated that if claimant had declared 100 percent improvement within a few minutes of being injected, he would have suspected more of a psychological component. As it was, she had a history of delay with substantial improvement noted 10 days post injection leading Dr. Oltman to think inflammation was present in the area injected. Thus, he was more convinced of a physically based condition. “Review of Dr. Slack’s report, however, does not correspond to a delayed response. He records that claimant reported immediate improvement. While at his office, using a pain scale of 1 to 10, she gave a pain level of O. In other words, shortly after the injections claimant was reporting she was pain free. This history casts doubt on the medical history relied on by Dr. Oltman in forming his opinion. As a consequence, his opinion is weakened. “Accordingly, for the above reasons, I find the weight of evidence does not establish the May 25,1995 injury was the major contributing cause of her disability and need for treatment of the combined condition. * * *” (Exhibit references omitted; emphasis added.) On review, claimant makes two assignments of errors. The first assignment says, “The Board erred * * * in not addressing the procedural validity of [the] denial.” Claimant argues that because she has made no claim for the compensability of a psychological condition or for a combined condition, the Board was without “jurisdiction” to uphold employer’s denial. Employer responds, “Here, the Board had jurisdictional authority precisely because the matter at issue involved a worker’s right to receive compensation. Claimant’s sole purpose for requesting a hearing on May 8,1996 was to gain compensation for the current cervical condition, which was denied by the employer. At the hearing level, claimant framed the issue as ‘whether or not the denial should be set aside — benefits according to law.’ Claimant’s opening argument clearly — 523 — states that ‘the medical bills need to be paid and she needs her time loss and her expenses for seeing her doctors down in Portland.’ Without claimant’s attempts to gain compensation for a condition that she claims is work related, there would not have been a matter concerning a claim, and neither the Hearings Division nor the Board would have had jurisdiction. However, because claimant’s case involves her right to receive compensation for an injury that she claims is work related, both the Hearings Division and the Board have jurisdiction pursuant to ORS 656.726(2) and 656.704(3).” (Internal references omitted.) ORS 656.704(3) provides: “For the purpose of determining the respective authority of the director and the board to conduct hearings, investigations and other proceedings under this chapter, and for determining the procedure for the conduct and review thereof, matters concerning a claim under this chapter are those matters in which a worker’s right to receive compensation, or the amount thereof, are directly in issue. However, such matters do not include any disputes arising under ORS 656.245, 656.248, 656.260, 656.327, any other provisions directly relating to the provision of medical services to workers or any disputes arising under ORS 656.340, except as those provisions may otherwise provide.” (Emphasis added.) As employer points out, claimant’s position before the hearings division and the Board triggered the provisions of ORS 656.704(3) because her requests constituted a “claim.” Accordingly, the Board has jurisdiction over this matter. In her second assignment of error, claimant contends: “Substantial evidence does not support the decision of the ALJ[.]” We examine the record as a whole to determine whether or not there is substantial evidence to support the ALJ’s findings in this case and whether her conclusion is based on substantial reason. ORS 183.482(8)(c).2 The ALJ discounted Oltman’s opinion because Oltman interpreted Slack’s report to say that claimant reported delayed relief from the injections. Instead, the ALJ understood Slack’s — 524 — report as saying that claimant had immediate relief from pain after the injections, a response that would be more consistent with a psychological reaction to the injections. According to claimant, the Board’s opinion is not supported by substantial evidence because “the ALJ misstated critical medical evidence.” In his report, Slack recounted that he gave claimant injections, and immediately after the procedure, the claimant evaluated her pain as “zero.” The injections apparently included a local anesthetic and a steroid that was intended to have a long term anti-inflammatory effect. He also gave claimant a prescription for pain control. Slack then included in the last page of his report claimant’s evaluation of her condition after treatment. In that evaluation, claimant stated that on the evening of the treatment, her neck symptoms were worse than before or were the same as before. Thereafter, she experienced gradual improvement over a ten-day period and subsequently, she reported substantial improvement in all areas. Thus, the last portion of Slack’s report supports Oltman’s opinion that claimant’s delayed response to the treatment demonstrates that her condition is not psychological. On the other hand, a claim of immediate relief from the steroid injection by claimant, if made, could be inconsistent with Oltman’s reasoning and render it suspect. In reviewing the Board’s order for substantial evidence, it is not our role to determine which understanding of Slack’s report is correct or what role it plays in the overall evaluation of the weight of the evidence. However, in Garcia v. Boise Cascade Corp., 309 Or 292, 295, 787 P2d 884 (1990), the court explained: “If a finding is reasonable in light of counterveiling as well as supporting evidence, the finding is supported by substantial evidence.” In that case, the structure of the ALJ’s opinion is curious. She reaches her conclusion about the weight of the evidence and whether the evidence is persuasive regarding the issue of the cause of claimant’s complaints apparently before she considers Oltman’s report. Also, we cannot discern from her opinion whether her discounting of Oltman’s opinion was the result of weighing all of the evidence and whether she considered, in rejecting his opinion, Oltman’s reliance on claimant’s report to Slack about her condition after the local anesthetic wore — 525 — off. Regardless, it was incumbent on the Board to weigh all of the evidence before it reached its conclusion. If, in fact, the ALJ’s opinion on which the Board relied failed to consider the report by claimant of her gradual improvement over a ten-day period after the injections were administered, then that omission was error under Garcia. Accordingly, remand is required for the Board to consider claimant’s claim in light of the entire medical record including the medical reports that pre-date Slack’s treatment.3 Reversed and remanded for reconsideration. Footnotes [1] “Somatization” is defined as “the production of physiological disfunction often resulting in irreversible structural changes by the exaggeration and persistence of an emotional state.” Webster’s Third New Int’l Dictionary, 2171 (unabridged ed 1993). [2] The statute provides, in part: “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.” [3] Contrary to the concurrence’s assertion, it is for the Board on remand to assess the relative weight of the various medical opinions in the record.