Oregon Cases December 20, 2019: In re Comp. of Dubell

Case Description

ORDER ON REVIEW
Dale C Johnson, Claimant Attorneys
SAIF Legal Salem, Defense Attorneys

Reviewing Panel: Members Ousey and Woodford.

Claimant requests review of Administrative Law Judge (ALJ) McWilliams's order that upheld the SAIF Corporation's denial of his injury claim for a left shoulder condition. On review, the issue is compensability.

We adopt and affirm the ALJ's order with the following exception. We do not adopt the ALJ's reasoning that Dr. Lamoreaux's opinion is inconsistent and not entitled to great weight. We supplement the ALJ's order as follows.

In upholding SAIF's denial, the ALJ found that the opinions of Dr. Meyers and Dr. Lamoreaux, claimant's treating physicians, were insufficient to establish that his October 2018 work injury was a material contributing cause of his disability/need for treatment of his left shoulder condition.

On review, claimant relies on Dr. Meyers's opinion and Dr. Lamoreaux's February 2019 chart note to establish that his October 2018 work injury was a material contributing cause of the disability/need for treatment of his left shoulder condition. He further argues that Dr. Lamoreaux's opinion is insufficient to carry SAIF's burden of proving that his "otherwise compensable injury" is not the major contributing cause of his disability/need for treatment for a combined left shoulder condition. For the following reasons, we disagree with claimant's arguments.

Claimant must prove that his October 2018 work incident was a material contributing cause of his disability/need for treatment for his left shoulder condition. ORS 656.005(7)(a); ORS 656.266(1); Tricia A . Somers , 55 Van Natta 462, 463 (2003). If claimant establishes an "otherwise compensable injury," and a "combined condition" is present, SAIF must prove that the "otherwise compensable injury" was not the major contributing cause of claimant's disability/need for treatment of the combined left shoulder condition. ORS 656.005(7)(a)(B); ORS 656.266(2)(a); Jack G . Scoggins , 56 Van Natta 2534, 2535 (2004).

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Because of the disagreement between medical experts regarding the cause of claimant's disability/need for treatment, this claim presents a complex medical question that must be resolved by expert medical opinion. Barnett v . SAIF , 122 Or App 279, 282 (1993); Matthew C . Aufmuth , 62 Van Natta 1823, 1825 (2010). More weight is given to those opinions that are well-reasoned and based on complete information. Somers v . SAIF , 77 Or App 259, 263 (1986).

For the reasons expressed in the ALJ's order, we find that Dr. Meyers's opinion does not persuasively establish that claimant's October 22, 2018, work injury was a material contributing cause of the disability/need for treatment of his left shoulder condition. We also do not find Dr. Lamoreaux's February 2019 chart note to be sufficient to carry claimant's burden of proof. We reason as follows.

Dr. Lamoreaux began treating claimant in January 2018 for left shoulder complaints that he attributed to overcompensating for a June 2016 right shoulder injury (which involved an irreparable right rotator cuff tear) and his work activities as a log equipment operator. (Ex. 29). A January 29, 2018, left shoulder ultrasound revealed a full-thickness supraspinatus tear retracted to the acromion, a full-thickness partial-width infraspinatus tear without retraction, and an intact subscapularis. (Exs. 30, 31).

Dr. Lamoreaux also treated claimant for an April 25, 2018, left shoulder/upper extremity injury at work. (Exs. 36, 37). A May 25, 2018, ultrasound revealed a full-thickness supraspinatus tear, a full-thickness partial-width infraspinatus tear with interval retraction, an intact subscapularis, and a ruptured long head of the biceps tendon. (Ex. 38).

On February 5, 2019, after his October 2018 work injury, claimant returned to Dr. Lamoreaux for left shoulder treatment. (Ex. 51). In her chart note, Dr. Lamoreaux stated that claimant "already had a pretty massive cuff tear but probably whatever few fibers he had left intact are gone now." (Ex. 51-1). She opined that claimant "has a combination of work, work injury, and age for a

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complete rotator cuff tear, but he had been able to work with restrictions and get in and out of his equipment until this most recent [October 22, 2018] injury." ( Id .)

Dr. Lamoreaux noted that claimant's examination findings demonstrated "essentially pseudoparalytic shoulder on the left side." ( Id .) Based on a January 2019 MRI that showed a complete massive rupture of the rotator cuff tendons, Dr. Lamoreaux diagnosed left shoulder rotator cuff arthropathy. ( Id .) Dr. Lamoreaux stated that, although claimant was young for it, "the only option for him would be to consider reverse arthroplasty, as he has enough arthritis that at this point a superior capsular reconstruction" was a reasonable choice, although he might not be deemed a candidate for it. ( Id .)

Claimant contends that Dr. Lamoreaux's references to a "pseudoparalytic shoulder" and his inability to work after his October 2018 injury establishes that his work injury was a material contributing cause of his disability/need for treatment of his left shoulder condition. However, in her April 2019 opinion concluding that claimant's October 2018 work injury was not a material contributing cause of his current left shoulder conditions and need for treatment, Dr. Lamoreaux explained that claimant's condition in February 2019 was the same as it had been during her previous examinations, and that her recommended treatment course remained unchanged. (Ex. 53-1). She also stated that claimant's two-month delay in seeking treatment further supported her conclusion that claimant's current presentation was a carry-over from his previously well-documented left shoulder conditions. ( Id .)

We find that Dr. Lamoreaux's reasoning is supported by her prior opinions, and persuasively establishes that claimant's October 22, 2018 work injury was not a material contributing cause of his disability/need for treatment for his left shoulder condition. ( See Exs. 29-5, 31-4, 38-2, 39).

Finally, even assuming (without deciding) that claimant has established an "otherwise compensable injury," we find that Dr. Lamoreaux's opinion persuasively establishes that his "otherwise compensable injury" was not the major contributing cause of the disability/need for treatment of his combined left shoulder condition. We reason as follows.

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In her April 2019 opinion, Dr. Lamoreaux stated that, to the extent that claimant's October 2018 work injury contributed to his left shoulder need for treatment, it would have done so by combining with his long-standing and previously-treated left shoulder rotator cuff tears. (Ex. 53-2). According to Dr. Lamoreaux, claimant's preexisting condition (and not his October 2018 work injury) was the major contributing cause of his left shoulder condition and need for treatment. ( Id .) In reaching this conclusion, we do not consider Dr. Lamoreaux's April 2019 opinion to be inconsistent with her November 2018 deposition testimony, which addressed the major contributing cause of claimant's left shoulder condition as an occupational disease. (Ex. 45). See ORS 656.005(7)(a)(B); cf . ORS 656.802(2)(a).

Under these particular circumstances, we find that claimant's October 2018 left shoulder injury claim is not compensable. ORS 656.005(7)(a)(B); ORS 656.266(2)(a). Accordingly, the ALJ's order is affirmed.

The ALJ's order dated June 5, 2019 is affirmed.

Entered at Salem, Oregon on December 20, 2019