Spring 2009 SBH Work Comp Quarterly
Oregon Workers' Compensation
PDF FormatOccupational Disease or Accidental Injury?
The burden of proof seems simple enough for workers' compensation claims. If you have an occupational disease claim, then claimant has to prove that the exposure is the major contributing cause of the diagnosed condition. ORS 656.802. This is a high standard to meet. Alternatively, for an accidental injury, claimant need only prove that the work injury was a material cause of disability or need for treatment. ORS 656.005. This is a much lower standard and one that does not require an actual diagnosable condition. Therefore, the different standards cause parties to dispute what qualifies as an injury claim and what is an occupational disease. Over the last few months, the Board has addressed this question in a number of decisions.
Gradual Versus Sudden Onset Is a Factor to Consider
In two recent cases, the Board held that a month-long onset qualified as an occupational disease and a week-long onset was determined to be an accidental injury claim. In Aerin L. Gloor, 61 Van Natta 280 (2009), claimant worked as a registered nurse and filed a claim for gradual onset of neck pain due to being short staffed for the prior month and lifting patients by herself. She was diagnosed with a C6-7 herniation. Claimant filed the claim as an OD claim, but the employer wanted it analyzed as an injury claim. The Board held it was properly analyzed as an occupational disease claim, relying on the fact that it was of gradual onset.
Conversely, in Robert Lekberg, 61 Van Natta 647 (2009), the Board held a one-week period qualified as an accidental injury. Here, claimant had a history of low back complaints. In 2000, he had pain into his left buttocks. In 2004, a DCS resolved the current condition and specific claims for L2-3 and L4-5 degenerative disc disease (DDD). In 2006, claimant sought treatment for left side pain and cramping in his leg. In 2007, he developed low back and left leg pain after a 70-hour week driving truck. An L3-4 disc condition (and multilevel DDD) was found. SAIF denied compensability. The ALJ upheld the denial, finding the condition to be an occupational disease. On review, the Board reversed, evaluating the claim instead as an injury. The Board relied on two points to make this determination: it found the heavy work week a discrete period of time and found the new diagnoses different from all of claimant's prior complaints. The Board relied on the treating doctor under the material cause standard to find the claim compensable.
In Infectious Disease Claims, the Exposure Period Is Crucial
In infectious disease claims, the Board looks at exposure periods to determine if it is an occupational disease or injury claim. In Tony L. Fairbanks, 61 Van Natta 74 (2009), the Board held there was unrebutted medical evidence that established claimant’s injurious exposure and the onset of his infection occurred suddenly, during a discrete period of time. It was analyzed as an injury claim and found to be compensable. Claimant, a millwright/mechanic, received a boot allowance for his work boots. Two and a half months after using the boots, he noticed shin discomfort. When he removed his boots at the end of the workday, he noticed a red spot on his left shin two inches below the top of the boot level. One week later, he sought treatment and was diagnosed with a MRSA infection. Medical testimony indicated he probably had prior MRSA colonization, but it had not been diagnosed or treated prior to the diagnosis of the MRSA infection. Thus, ORS 656.005(24)(a) was held not to apply. Since there was a discrete, sudden onset of the MRSA infection "condition," an accidental injury, rather than an occupational disease, theory was appropriate.
The Board reached the opposite conclusion in Martha K. Seeley, 54 Van Natta 2279 (2002). There, the Board held it was impossible to determine the exact exposure period and analyzed the claim as an occupational disease. Claimant, an operating room technician, sustained numerous "needle stick" injuries at work. After suffering a penetrating wound from a contaminated suture needle in 1999, claimant tested positive for the Hepatitis C virus (HCV) for the first time. Seeley, at 2280. The medical evidence revealed the source of claimant's HCV was unknown, it could not be determined, and it was impossible to ascertain how long claimant had been HCV positive. Id. at 2281.
The employer in Seeley argued that because claimant's condition was not the product of multiple incremental injuries or exposures, but instead resulted from a single accidental exposure, it must be analyzed as an injury rather than an occupational disease. Id. at 2282. Based on the doctor's references to claimant's 25 years in a health profession with a statistically higher incidence of HCV and her history of numerous "needle stick" episodes, the Board concluded claimant's HCV condition was gradual in onset and was properly analyzed as an occupational disease. Id. at 2283.
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