41 Trial Lawyer • Spring 2022 Comp Corner accident) combined with the preexisting condition (the arthritis), and (2) the L4-5 disc herniation was not the major contributing cause of the need for treatment or disability of the combined condition. Thus, for omitted conditions (and presumably for new conditions, as well), the legal standard for a combined condition is the combination of two conditions, not the combination of the work event and the preexisting condition. In Carrillo v. SAIF, 310 Or App 8 (2021), the court addressed the narrow legal issue “whether symptoms of a preexisting condition brought on by work activity can ‘combine’ with the preexisting condition to give rise to a combined condition.” The court rejected the Board’s analysis of “two medical problems” consisting of the preexisting condition and the symptoms of the preexisting condition. The court relied on Brown and Multifoods Specialty Distribution v. McAtee, 333 Or 629, 636 (2002), to hold that “a combined condition consists of two separate medical conditions that combine and that a symptomatic flare up of a preexisting condition cannot combine with the preexisting condition itself.” In Interiano v. SAIF, 315 Or App 588 (2021), the court addressed compensability of a new injury (as was the case in Carrillo), holding that a combined condition cannot consist of spondylosis and the symptoms of spondylosis caused by the work accident. Applying Carrillo, the court held “a preexisting condition and its symptoms are not separate conditions,” and the Board erred in applying a combined condition analysis. Most recently, the court issued Gibson v. ESIS, 316 Or App 703 (2022). At issue was compensability of a new/omitted medical condition of osteoarthritis. The court applied Brown and Carrillo to hold By Julene Quinn OTLA Guardian When the Supreme Court handed claimants the loss in Brown v. SAIF, 361 Or 241, 281 (2017), it promised that inj u r e d w o r k e r s would be able to claim compensability of a preexisting condition worsened by the injury. The Court of Appeals has held true to that word and determined that worsened preexisting conditions are compensable, and the legal standard for compensability is whether the work injury (event) is a material contributing cause of the need for treatment or disability under ORS 656.005(7)(a). Essentially, the reasoning is that a combined condition under ORS 656.005(7)(a)(B) is two separate medical conditions. Symptoms of a preexisting condition and the preexisting condition itself are not two separate medical conditions. New court cases In Pedro v. SAIF, 313 Or App 34 (2021), at issue was compensability of an L4-5 disc herniation as an omitted medical condition. The Board found the work accident was a material contributing cause of the need for treatment of the L4-5 disc herniation, which made the herniation an “injury.” Applying Brown, the court held the proper legal standard for a combined condition was for SAIF to show (1) the L4-5 disc herniation (not the work Pre-existing Conditions Issues & Topics for theWorkers’ Compensation Attorney Julene Quinn that a combined condition consists of two separate conditions. Further, the court noted it held in Carrillo and Interiano, that “the worsening of a preexisting condition cannot be a separate condition from (and thus cannot combine with) the underlying preexisting condition to establish a legally cognizable combined condition.” The court was clear, stating: [T]he Board errs if it determines that the symptoms of a preexisting condition, the worsening of a preexisting condition, or an incident itself, as distinct from a new medical condition, combined with the preexisting condition to give rise to a combined condition within the meaning of ORS 656.005(7)(a)(B). [Citing Carrillo, Interiano, and Pedro.] The court held (again): “Symptoms of a preexisting condition triggered by a workplace incident cannot constitute a medical condition separate from the preexisting condition.” The court was clear in Gibson that a combined condition is not the preexisting condition combined with its symptoms triggered by a work accident. Moreover, the court rejected that ORS 656.225 was relevant to determining the compensability of a combined condition, indicating the statute addresses compensable treatment solely directed to a preexisting condition. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 971-259-8141 or julene.m.quinn@ gmail.com.
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