IN RE: the Compensation of Barbara L. Hopkins

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Court of Appeals of Oregon.

IN RE: the Compensation of Barbara L. Hopkins, Claimant. Barbara L. HOPKINS, Petitioner, v. SAIF CORPORATION and NYSSA Gardens Adult Alternative Living, Respondents.

0407794, A132882.

Decided: October 03, 2007

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and CARSON, Senior Judge. R. Adian Martin argued the cause and filed the briefs for petitioner. David L. Runner, Special Assistant Attorney General, argued the cause for respondents.   With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

  Petitioner seeks judicial review of an order of the Workers' Compensation Board that concluded that claimant's degenerative disc condition is not “arthritis or an arthritic condition.”   In reaching its conclusion, the board reasoned that the meaning of the term “arthritis or an arthritic condition” was a question of fact to be decided based on competing medical opinions.   After the board issued its order, we decided Karjalainen v. Curtis Johnston & Pennywise, Inc., 208 Or.App. 674, 685, 146 P.3d 336 (2006), rev. den., 342 Or. 473, 155 P.3d 51 (2007), which held that the meaning of the term “arthritis or an arthritic condition” involved an issue of statutory construction rather than “one based on what [the board] regard[s] as the most persuasive evidence as to current medical understanding of the term.”   Because the board's order was erroneous in light of Karjalainen, we reverse and remand to the board for further proceedings.

 Respondents cross-assign as error the board's ruling that claimant had an “otherwise compensable injury” based on its finding that claimant's act of bending forward at work was a “material contributing cause” of disc herniations.   Respondents rely on our decision in Mize v. Comcast Corp-AT & T Broadband, 208 Or.App. 563, 145 P.3d 315 (2006), also decided after the board issued its order.   The board did not have the benefit of our decision in Mize when it determined that claimant had an “otherwise compensable injury” and, on remand, may reconsider its order in that respect.

Reversed and remanded for reconsideration.