Safety and OSHA News

Did pre-existing condition negate workers’ comp for injury?

An employee had two previous surgeries for herniated discs, neither one caused by work. Years later he injured his back again, this time on the job. Will workers’ comp pay for this injury? 

Shelby Vantassel worked for Robert Warren Trucking LLC in Oregon. In December 2012, he was getting out of a truck and felt intense pain in both legs. Doctors diagnosed a recurrent disc herniation.

Vantassel had surgeries for the same disc herniation in 2002 and 2009.

He filed for workers’ comp benefits which were denied by his employer’s insurance carrier, SAIF.

An orthopedic surgeon examined Vantassel at SAIF’s request. The surgeon said stepping out of the truck was the precipitating cause of his most recent disc herniation, but his previous herniations and surgeries were the major contributing cause. The surgeon said:

“Pre-existing conditions, including the surgery, did combine with an event at work and the pre-existing conditions are the major contributory cause for his present need for treatment or disability.”

The surgeon who previously operated on Vantassel’s back said the incident at work was the cause of the need for additional surgery.

Relying on the surgeon who examined Vantassel at SAIF’s request, an administrative law judge found the pre-existing conditions were the major contributing cause of his new injury. Therefore, SAIF had met its burden to support its denial of benefits. The Oregon Workers’ Compensation Board agreed. Vantassel appealed to a state court.

Vantassel argued the board incorrectly characterized his back condition before the most recent injury as a pre-existing condition. He pointed to the state’s workers’ comp law which says a condition isn’t considered pre-existing when it “merely renders the worker more susceptible to the injury.” Vantassel says his previous herniations and surgeries only created a susceptibility to repeat injuries.

The state’s workers’ comp law also says:

“If an otherwise compensable injury combines at any time with a pre-existing condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing factor.”

The appeals court noted it had “recently attempted to discern the meaning of a mere susceptibility.” In another case, the employee sought to be compensated for treatment of an abdominal hernia that occurred after lifting at work. The worker had a previous hernia and repair in the same location, including a weakening of his abdominal wall. The court found this was only a susceptibility and didn’t constitute a pre-existing condition. In this case, the employee was more vulnerable to injury but the previous injury didn’t contribute to the new injury.

But in Vantassel’s case, the doctor hired by SAIF referred to his recurrent disc herniation and two previous surgeries as pre-existing conditions. The doctor said this wasn’t just a susceptibility to new injuries. The old injuries and treatments actively caused the most recent back condition.

The appeals court agreed with the board: Vantassel’s pre-existing disc herniations and surgeries were the major contributing causes of his need for additional treatment and didn’t merely render him more susceptible to injury. For that reason, he was denied workers’ comp coverage for his injury.

(Shelby J. Vantassel v. Robert Warren Trucking LLC, Court of Appeals of Oregon, No. A156798, 3/15/17)

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