Combined Condition Compensability Ping Pong in Oregon
Combined condition processing can present a complicated challenge for employers and insurers. Once compensability has been challenged at the hearing level, and on review, employers and workers must engage in a game of burden shifting ping pong to establish or rebut compensability. Fortunately, the Board recently issued an opinion in which they explained an employer’s best shot at defending against combined condition compensability.
In Olivia Escobedo, the Board was tasked with determining whether the ALJ below had erred by setting aside the employer’s denial of claimant’s new or omitted medical condition claim for a combined condition cervical spondylosis condition. 77 Van Natta 35 (2025). On review, the Board reversed the ALJ’s decision setting aside the denial. Id. In doing so, the Board explained the worker did not meet the burden of proof of establishing the existence of a combined condition. Thus, the Board did not have to determine whether the employer had adequately met its burden of proof under ORS 656.266. Id. at 38. In other words, the employer did not have to engage in the burden shifting volley because the worker messed up their serve.
The Board explained a “combined condition” is characterized as having two simultaneous medical problems, and suggests the presence of two separate medical conditions which combine together. Id., at 36. Those two separate medical conditions consist of (1) the otherwise compensable condition and (2) a pre-existing condition which has been established via medical evidence. In order to serve up the burden of proof to the employer, the worker must prove through persuasive medical evidence that their otherwise compensable injury had combined with a pre-existing condition to cause or prolong the disability or need for treatment. Id., at 36. If the worker accomplishes this, the ball is on the employer’s side of the table. In that case, the employer can return the volley and defeat compensability of a combined condition by demonstrating, via persuasive evidence, the otherwise compensable condition was not the major contributing cause (51% or more) of the worker’s disability or need for treatment of the combined condition.
This was aptly demonstrated by the employer in Escobedo. While the worker in Escobedo asserted her otherwise compensable injury—a cervical sprain—had combined with pre-existing cervical spondylosis, the Board explained the medical evidence in the record indicated otherwise. Id., at 38. The Board pointed towards the opinion of Dr. Benz in support of this conclusion. Id.¸ at 37. In doing so, the Board explained Dr. Benz had identified the cervical spondylosis as pre-existing and had explained it could be caused or worsened by an acute injury involving significant force to the spine. Id., at 35. The record reflected the worker’s injury event was rather low impact—lifting boxes. Id. Dr. Benz explained the flare-up of symptoms associated with a cervical sprain had no impact on symptoms associated with pre-existing spondylosis. Id., at 36. He further conveyed the worker’s cervical spondylosis symptoms were different from those caused by her cervical sprain, and that her post-work injury symptoms were easily explainable without the presence of cervical spondylosis. Id. While the Board explained there are no magic words which can be used to defeat combined condition compensability, it found Dr. Benz’s explanation was (1) well reasoned; (2) had squarely addressed the combined condition’s existence; and (3) was unrebutted by any other physician in the record. Id., at 37. Accordingly, the Board concluded the worker had not met her burden of proof via persuasive medical evidence and thereby failed to serve the burden of proof over to the employer.
Thus, the best way to combat a combined condition analysis is to ensure the medical record contains persuasive evidence demonstrating there was no combining between the otherwise compensable condition and pre-existing condition. Even when this is not possible, employers can bolster their defense by eliciting persuasive medical opinions squarely and plainly addressing combined conditions. Where the record clearly indicates a combining did not occur, the employer is much more likely to be able to defeat a combined condition’s compensability.
The compensability of combined condition is something that will certainly be litigated and expanded upon again in the future. However, Olivia Escobedo demonstrates an employer can sufficiently defend against this type of claim with a persuasive, unrebutted medical opinion.
If you have any questions or would like to discuss any other complications which can arise with combined conditions, please feel free to contact me at tbhullar@sbhlegal.com or at (971)-867-2726.
Posted by Tejinder Bhullar.
