Corkum Adds Another Layer to Combined Condition Analysis
In the past year and a half, the Oregon Court of Appeals has done much to change the landscape of how combined condition claims are processed and litigated. While Brown v. SAIF is currently pending before the Supreme Court of Oregon, the Court of Appeals has published a new opinion that again challenges what we thought we knew about combined conditions. In Corkum v. Bi-Mart Corp., 271 Or App 411, the Court addressed the distinction between a claimant’s predisposition to an injury and the “cause” of an injury. In doing so, the Court distinguished between “active” and “passive” causes of an injury, and the impact each designation will have on the compensability of a combined condition. In sum, the Court found that only “active” causes are considered when analyzing the major contributing cause of a combined condition.
In Corkum, the issue was whether a claimant’s weak abdominal wall was the major contributing cause of a work-related hernia condition. The claimant had also experienced a previous hernia unrelated to work. In the IME doctor’s opinion, the history of hernias indicated the claimant had a weak abdominal wall, predisposing him to develop hernias. The employer eventually denied the claim on the basis that the hernia condition was a combined condition, and the work injury was not the major contributing cause. Relying on the medical opinion of the IME doctor, the ALJ and the Board upheld the denial, finding that the abdominal weakness was the major contributing cause of the claimant’s hernia condition.
The Court of Appeals reversed the denial, finding that only “active” causes of a combined condition are considered in a combined condition compensability determination. The Court explained whether the claimant’s abdominal wall weakness should have been considered a cause of the combined condition turned on the meaning of “susceptible” in ORS 656.005(24)(c), which is not statutorily defined. Under ORS 656.005(24)(c), a condition that merely renders a worker more “susceptible” to injury does not contribute to disability or need for treatment. The Court interpreted the legislative history of ORS 656.005(24) to find the legislature intended to remove from the definition of “pre-existing condition,” conditions that did not “actively” cause a claimant’s disability or need for treatment. The Court found that “active” causes are causes that are “ongoing contributors to damaging the body part involved . . . that have their own independent, active pathological impact on the body part.” In contrast, passive causes are “traits, characteristics, and asymptomatic conditions.” Passive causes that merely render a claimant more susceptible to injury may include: “age, gender, weight, history of smoking, alcohol use . . . family history, and . . . congenital factors.” The Court held the diagnosed weak abdominal wall was a passive cause of claimant’s right inguinal hernia because it did not actively contribute to the condition; rather, it merely made claimant more susceptible to hernias. Consequently, the weak abdominal wall was not considered a “cause” for purposes of a combined condition analysis, and employer’s denial was overturned.
It appears the upshot of Corkum is that carriers can no longer rely on pre-existing conditions not “actively” contributing to the combined condition pathology to form the major contributing cause of a combined condition for purposes of a combined condition denial. In light of Corkum, what must carriers do to successfully process and defend combined condition denials?
First, during a medical investigation, carriers will have to go beyond merely identifying pre-existing conditions as defined by ORS 656.005(24)(a) and asking doctors whether those pre-existing conditions are the major contributing cause of a combined condition. It will be important to ask doctors to identify which pre-existing conditions (if any) are “actively” contributing to the claimant’s combined condition. This may be easier said than done. In Corkum, the Court noted that whether a cause is “active” or “passive” must be determined on a case by case basis. As such, causes of medical conditions are not categorically “active” or “passive.” In practice, whether a cause is active or passive will likely come down to the strength of each doctor’s reasoning and analysis. It is conceivable causes such as obesity or history of smoking could be passive causes of a combined condition in some instances, but active causes in another. From the perspective of insurers and defense attorneys, it will be important to educate medical experts on the new difference between “active” and “passive” causes of combined conditions.
Second, the Corkum ruling will likely impact the processing of combined condition acceptances and current condition denials. Where a combined condition is accepted, but the work-related component of the combined condition later ceases to be the major contributing cause of the combined condition, the employer is permitted to issue a denial of the combined condition and close the claim. ORS 656.262(6)(c). These “current condition denials” have been useful for cutting off liability in instances where the claimant’s disability or need for treatment continues after the resolution of the work-related conditions. However, in light of Corkum, the opportunities to utilize a current condition denial will likely be more limited. Certain non-work related conditions passively impeding the claimant’s improvement may no longer be utilized to support a current condition denial. As mentioned above, the critical step will be obtaining a well-reasoned medical opinion showing the active involvement of the pre-existing condition in the ongoing disability or need for medical treatment associated with the combined condition.