Acute Stomach Pain and the Sheepherder–Oregon Court of Appeals issues decision on course and scope
The Oregon Court of Appeals issued a non-precedential memorandum opinion on an interesting case recently involving a worker who experienced an acute medical condition, a burst appendix, but in a remote geographical area. This decision addresses the fact, regardless of the category of risk, claimant must still establish a causal connection between the injury and the employment. Further, in this specific appendix case, claimant bore the burden of connecting his abdominal condition to his remote work environment.
In the case of Elvin R. Vilca-Inga v. SAIF, 327 Or App 430 (2023), claimant experienced abdominal pain while working in the mountains as a sheepherder. He reported the pain to his employer the following day. He was taken to a clinic, then to a hospital 90 miles away. Claimant then had an appendectomy for acute appendicitis with perforation. The resultant workers’ compensation claim was denied. The Administrative Law Judge, and the Workers’ Compensation Board, upheld the denial. On Judicial Review, claimant renewed his arguments that his employment in a remote work environment exposed him to an increased risk or harm due to delay caused in obtaining medical care. This delay resulted in his appendix rupturing, and the complications of that rupture.
The Court of Appeals reviewed the Board’s decision for errors of law and substantial evidence. With that in mind, the Court considered the burden of proof, and confirmed claimant must prove his abdominal condition arose out of his employment. The Court concluded claimant failed to prove his abdominal condition arose out of his employment. Claimant postured his appendicitis and resulting complications as “neutral risks,” and thus compensable. The Court confirmed, regardless of the category of risk, claimant still has to prove a causal connection between the injury and the employment. Bruntz-Ferguson v. Liberty Mutual Ins., 310 Or App 618 (2021).
The Supreme Court had already explained an appendicitis attack that occurs while working does not arise out of employment because there is no causal connection between the work and the attack. Clark v. U.S. Plywood, 288 Or 255 (1980). The Court determined claimant then had to connect his abdominal condition to his remote work environment.
Claimant attempted to argue his geographically remote work environment increased the likelihood of his condition because his access to treatment was delayed. The Court looked closely to the medical record to consider claimant’s arguments. The medical expert opined it is common for an individual to delay treatment for one day after symptoms of appendicitis begin, as claimant did. Further, the medical expert could not identify when claimant’s appendicitis began, when his appendix ruptured, or whether his appendix would have ruptured if he sought treatment sooner. Claimant did not submit contrary evidence, nor did he submit supporting evidence.
In light of the factual and medical evidence curated at the hearing and Board levels, the Court concluded the Board did not err when determining the claim did not arise from claimant’s employment. The record lacked evidence of a causal link between claimant’s abdominal condition and his remote work environment. The Court affirmed the Board’s decision.
Take-Away for Employers and Claims Examiners
This case offers a unique insight into the importance of developing the facts and medical evidence encompassing alternative arguments and theories of the case. We may be quick to decide the appendix claim is not work-related and just carry on about our day. If the administrator in this case elected that path, the outcome may have looked very different.
Here, the ALJ, Board, and Court of Appeals all looked carefully at the facts and the medical evidence when considering whether claimant’s work activities or his work environment caused the abdominal condition. Further, the judiciary also looked closely to the questions posited before the medical expert, to include timing of the condition onset, appendix rupture, and even probabilities of rupture at any other time of day. The Court of Appeals was able to affirm the Board’s decision because the evidentiary record was well developed.
I recommend taking those extra steps to develop as strong an evidentiary record as possible to support a denial, to include witness interviews, expert medical record reviews and/or Independent Medical Exams, and/or forensic analyses (depending upon the type of case). A solid record will hopefully beget a strong decision.
If you have any questions about claim processing, defending denied claims at hearing, your claim resolution strategy, or any other Oregon Workers’ Compensation issue, please contact me at or 971-977-5970.
Posted by Kat Wolfe.
