IN RE: the COMPENSATION OF Maurice MCDERMOTT (2020)

This case is on remand to us from the Supreme Court for reconsideration in light of the Supreme Court's opinion in Caren v. Providence Health System Oregon, 365 Or. 466, 446 P.3d 67 (2019). Caren involved a workers' compensation claim that the employer had accepted for “lumbar strain.” At the time of claim closure, 50 percent of the claimant's impairment was determined to be due to preexisting arthritis. On reconsideration, medical arbiters opined that 70 percent of the claimant's impairment was due to the preexisting arthritis, and the claimant's permanent disability award was apportioned, or reduced, accordingly. The claimant had not requested acceptance of a combined condition and the employer had not accepted or denied a combined condition.

The Workers' Compensation Board upheld the apportionment, rejecting the claimant's contention that she was entitled to an award for her full impairment. On review, we affirmed the board's order without written opinion, upholding an apportionment of benefits to reduce the claimant's benefits for impairment by the impairment attributable to the preexisting condition, and citing our opinion in McDermott v. SAIF, 286 Or. App. 406, 420, 398 P.3d 964 (2017), rev'd, 365 Or. 657, 451 P.3d 1014 (2019).

In McDermott, we had held that a worker's benefits for impairment at the time of claim closure could be apportioned, or reduced, by the percentage of impairment “due to” the worker's legally cognizable preexisting condition, unless the preexisting condition had been claimed by the worker, accepted by the employer as part of a combined condition, and remained compensable at the time of closure. Id.

The Supreme Court allowed review in Caren and overruled our analysis in McDermott. Under the Supreme Court's analysis in Caren, the general rule is that, at claim closure, a worker is entitled to benefits for the worker's total impairment, if the work injury is a material contributing cause of the worker's total impairment. 365 Or. at 487, 446 P.3d 67. That total impairment may include impairment due to preexisting conditions that are not otherwise compensable. As long as the work injury is a material contributing cause of the worker's total impairment, the total impairment is compensable.

However, there is an exception to that general rule when a work injury has combined with a qualifying, legally cognizable preexisting condition to cause impairment, and the combined condition is not (or is no longer) compensable. Under that exception, benefits for impairment can be reduced by the impairment caused by the combined condition only if the employer has identified the combined condition and denied it before claim closure. Id. It is not the claimant's burden to first seek acceptance of a combined condition.¹

Here, the board upheld an apportionment (or reduction) of claimant's benefits for impairment due to a preexisting condition, even though employer has not denied a combined condition involving that preexisting condition. Under Caren, that was not appropriate. We therefore reverse and remand this case to the board for reconsideration in light of Caren.

Reversed and remanded.

FOOTNOTES

1.   We note that the Supreme Court's opinion implicitly overrules our opinion in Croman Corp. v. Serrano, 163 Or. App. 136, 140, 986 P.2d 1253 (1999), in which we held that the preclosure denial of a combined condition claim applies only to an accepted combined condition claim.

DeVORE, P. J.