OTLA Trial Lawyer Summer 2021

42 Trial Lawyer • Summer 2021 Comp Corner need for treatment or resulting disability means the accidental injury is “a causal factor.” Olson v. State Ind. Acc. Com. 222 Or 407, 414 (1961). “Material contrib- uting case” means something more than a minimal cause. It need not be the sole or primary cause, but only the precipitating factor. Summit v.Weyerhaeuser Company , 25 Or App 851, 856 (1976). A symptomatic worsening of a pre-existing condition satisfies the material contributing cause standard. Edward K. Merriweather , 65 Van Natta 2219, 2221 (2013); William C. Voodre , 63 Van Natta 1045, 1049-50 (2011); Noel C. Jinings-Karr , 71 Van Natta 1376, 1378 (2019). “Material contributing cause” has been defined as a “but for” cause. Taylor v. SAIF , 75 Or App 583 (1985) (even though claimant’s obesity predisposed her to back prob- lems, her condition requiring treatment did not exist until the 1981 injury, which was, thus, a material contributing cause of her condition). The Supreme Court continues to apply this long-established standard. Schleiss v. SAIF , 354 Or 637, 643-44 (2013); see Brown v. SAIF , 361 Or 241, 268 (2017). The legal standard An injury must be “established by medical evidence supported by objective findings.” ORS 656.005(7)(a). “Objec- tive findings” is a legal standard, not a medical one. SAIF v. Lewis , 335 Or 92, 58 P3d 814 (2002); see Hopkins v. SAIF , 349 Or 348, 355, 245 P3d 90 (2010) (meaning of statutory term – “arthritis” - is a matter of law, not a question of fact for expert testimony); Abu Dolley , 67 Van Natta 607, 608-09 (2015). “Objective findings” “does not constrain the person who identifies an indication of injury or disease to rely solely on their own percep- By Julene Quinn OTLA Guardian B ack to basics: the law to prove a simple injury claim. To prove an in- jury claim, the law requires a claimant to prove their work injury was a mate- rial contributing cause of the need for treatment. ORS 656.005(7)(a); Ol- son v. State Indus. Acc. Com. , 222 Or 407, 414-15 (1960). The claimant need not prove the accident caused a condition, but must prove it caused the need for treat- ment or disability. See Schleiss v. SAIF , 354 Or 637, 643 (2013) (reciting the Olson standard that a workplace in- jury must be a material contributing cause of disability or the need for medical treatment). The burden of proof is based upon a preponderance of the evidence, meaning a determination as to wheth- er the evidence preponderates in the claimant’s favor. Hutcheson v. Weyer- haeuser Co. , 288 Or 51, 55-56 (1979) (nothing in the statutes of workers’ compensation requires a quantum of proof greater than a preponderance of the evidence); Raines v. Hines Lbr. Co. , 36 Or App 715, 719, 585 P2d 721 (1978) (“The fact finder has to view the evidence objectively to determine if it preponderates in favor of the claimant.”) Causal factor “Material contributing cause” of the Basic Injury Law Issues & Topics for the Workers’ Compensation Attorney Julene Quinn tions or examinations.” Lewis , 335 Or at 101. Medical personnel may employ a range of diagnostic methods that their professions prescribe, and infor- mation gleaned from such sources may be sufficient to establish the worker had or has an indication of injury or disease. Id. No diagnosis required A specific diagnosis is not required. It is sufficient if the work accident is a material contributing cause of the need for treatment. K-Mart v. Evenson , 167 Or App 46, 1 P3d 477 (2000) (pro- phylactic medical services); Horizon Air Industries, Inc. v. Davis-Warren , 266 Or App 388, 337 P3d 959 (2014) (diagnostic medical services). Under Boeing Aircraft Co. v. Roy , 112 Or App 10, 15, 827 P2d 915 (1992), a claim- ant need not prove a specific diagnosis in an injury claim, if they prove their symptoms are attributable to their work. As well, the proof for a new or omit- ted medical condition requires proof the work injury was a material contrib- uting cause of the disability or need for treatment of the claimed condition. Jesus Meza , 69 Van Natta 1747, 1748 n. 2 (2017). The Board has expressly declined to change that standard to proof the work injury is a material contributing cause of the claimed condition itself. Id . Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians of Civil Justice 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.