Oregon Court of Appeals issues another decision scrutinizing combined condition defenses
We often discuss combined condition acceptances and denials as useful claim processing tools, particularly in closing a claim which may otherwise be difficult to close, but also for apportioning impairment at claim closure and defending against compensability if a claimant has a preexisting condition.
ORS 656.005(7)(a)(B) states that “if an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable 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.”
In other words, once an insurer or employer has accepted a combined condition, it may later deny the condition when the otherwise compensable injury ceases to be the major contributing cause of the combined condition.
Alternatively, if an insurer or employer has denied a condition, and a claimant meets the material cause standard at hearing, the insurer or employer can apply a combined condition analysis to argue the otherwise compensable injury was not the major contributing cause of disability or need for treatment.
In the past year, the Workers’ Compensation Board and the Court of Appeals have heightened their scrutiny on what constitutes a combining and what evidence is sufficient to establish when the otherwise compensable injury has ceased to be the major contributing cause of claimant’s disability or need for treatment.
In Carrillo v. SAIF, the Court of Appeals held that a combined condition implies that two separate conditions combined. Thus, in this case, new symptoms in a preexisting condition caused by work activities could not combine with the preexisting condition itself because they were not separate conditions. 313 Or App 34 (2021).
In Pedro v. SAIF, the Court of Appeals reversed a Board determination that claimant’s L4-5 disc protrusion was part of a combined condition with claimant’s preexisting arthritis because the evidence in the record did not explain how those medical conditions combined. 313 Or App 34 (2021).
In Paul A. Harvey, the Board set aside a carrier’s ceases denial of a worker’s combined lumbar strain condition when it concluded one of the employer’s experts had not provided an adequate explanation of why the lumbar strain had resolved and the other expert had not identified any clinical findings or a change in the worker’s symptoms to correlate with a resolved condition. 73 Van Natta 34 (2021).
Most recently in Gibson v. ESIS, The Court of Appeals maintained its prior decisions in Carrillo, Pedro, and another 2021 decision Interiano v. SAIF, 315 Or App 588, holding symptoms of a preexisting condition, a worsening of a preexisting condition, or a work injury event itself are not discrete conditions and therefore cannot combine with a preexisting condition to give rise to a combined condition. 316 Or App 703 (2022).
So what does this all mean in practice? It means that to defend a combined condition analysis, insurers or employers will need to be able to prove a condition distinct from the preexisting condition then combined with that preexisting condition. Further, if the insurer or employer is arguing an otherwise compensable injury has ceased to be the major contributing cause of a claimant’s disability or need for treatment, medical expert reports will need to establish how those conditions combined and provide evidence from clinical findings or the record to show a change in the worker’s symptoms. A medical opinion which concludes the otherwise compensable injury has resolved must be able to support that conclusion with evidence.
If you have any questions about combined condition defenses or need assistance on any other legal issues, please contact me at (503) 595-6108 or .
Posted by: Evan Novotny
