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In the Matter of the Compensation of GEORGE C. KERNION_ JR

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					                             57 Van Natta 1621 (2005)                        1621
                      In the Matter of the Compensation of
                    GEORGE C. KERNION, JR., Claimant
                            WCB Case No. 03-01643
                             ORDER ON REVIEW
                   Welch Bruun & Green, Claimant Attorneys
                  Sather Byerly & Holloway, Defense Attorneys

      Reviewing Panel: Members Langer, Biehl and Bock. Member Biehl
dissents.

       Claimant requests review of Administrative Law Judge (ALJ) Bethlahmy’s
order that upheld the self-insured employer’s denial of claimant’s occupational
disease claim for bilateral pleural plaquing. On review, the issue is
compensability.
      We adopt and affirm the ALJ’s order with the following supplementation.
       Claimant, a radiation protection technician and chemist, retired from
employment with this employer in 2000. In 2001, he developed a persistent cough
for which he sought medical attention. The cough was determined to be related
to post-viral bronchial irritability and seasonal allergies. As part of his treatment
for the non-work related conditions, a chest x-ray was taken that revealed pleural
plaquing, a thickening of the lining of the lung and chest. While claimant did not
have asbestosis, the pleural plaquing was consistent with past exposure to asbestos.
Claimant was exposed to asbestos in the Navy and it was possible that his work for
the employer also involved asbestos exposure.

       Claimant’s treating physician, Dr. Notingham, concluded that it was
likely that claimant’s work exposure both in the Navy and while working for the
employer caused his pleural plaquing. (Ex. 40). Dr. Notingham prescribed no
treatment for the pleural plaquing, but recommended that claimant receive a yearly
chest x-ray. The employer denied the claim for bilateral pleural plaquing and
claimant requested a hearing.

       The ALJ upheld the denial, finding that medical services were not required
and claimant had not suffered any disability or physical harm. In so doing, the
ALJ determined that a recommendation for a yearly x-ray did not constitute
required medical services that would have brought the claim within the definition
of a compensable occupational disease. The ALJ cited, among other cases,
K-Mart v. Evenson, 167 Or App 46 (2000).
                                   57 Van Natta 1621 (2005)                                   1622
       On review, claimant contends that “pleural plaquing” is a “disease” and
that, contrary to the ALJ’s determination, Evenson supports a finding that medical
services were required and, thus, that he sustained a compensable occupational
disease. For the following reasons, we disagree.

       ORS 656.802(1)(a) defines an “occupational disease” as a “disease or
infection arising out of and in the course of employment caused by substances or
activities to which an employee is not ordinarily subjected or exposed other than
during a period of regular actual employment * * *.” The ordinary meaning of the
term “disease” is “an impairment of the normal state of the * * * body”; “sickness,
illness.” Mathel v. Josephine County, 319 Or 235, 240 (1994).1

       To determine whether pleural plaquing is an occupational disease under
Mathel, we look to the medical evidence. Dr. Burton, an examining occupational
and environmental toxicologist, noted there was no medical data to support a
diagnosis of asbestosis, and that the finding of pleural plaques, which represented
a thickening and calcification of the lining around the lung, did not constitute
a pulmonary condition associated with impairment. (Ex. 36-16). Moreover,
Dr. Burton stated that, most frequently, pleural plaquing is an incidental finding
not associated with impairment. (Ex. 36-17).

       Dr. Notingham concurred with Dr. Burton’s report. (Ex. 38). In addition,
Dr. Notingham later submitted a narrative report in response to an inquiry from
claimant’s counsel. In that report, Dr. Notingham described “pleural plaques”
as a thickening of the lining of the chest. (Ex. 40). Like Dr. Burton,
Dr. Notingham also could not diagnose asbestosis, but recommended ongoing
“medical surveillance.” Noting a lack of consensus about the nature and
frequency of such medical surveillance, Dr. Notingham indicated that he
usually advised a yearly chest x-ray.


       1
          In Johnsen v. Hamilton Electric, 90 Or App 161 (1988), the court held in a case concerning a
similar condition (pleural “shadows”) that the claimant did not have a compensable occupational disease
claim. Even though yearly x-rays were recommended for the claimant in Johnsen, the court held that the
occupational disease claim was not compensable because the claimant did not have asbestosis or any
other disease. 90 Or App at 165. Given the Supreme Court’s later decision in Mathel, we apply the
occupational disease standard set forth in that case. In doing so, we recognize that the Court of
Appeals in SAIF v. Falconer, 154 Or App 511, 517 (1998) stated that legislative amendments to
ORS 656.802(1)(b) were intended to overrule Mathel. However, the court in Weyerhaeuser Co. v. Woda,
166 Or App 73, 81 (2000), subsequently indicated that the Mathel definition of a “disease” remains
viable.
                                     57 Van Natta 1621 (2005)                                    1623
       Having reviewed the relevant medical evidence, we conclude that it does
not satisfy the Mathel standard of an impairment of the normal state of the body.
Dr. Burton specifically stated that claimant had no impairment because of his
pleural plaques and Dr. Notingham concurred with that opinion. Thus, we
conclude that this record does not establish the presence of a “disease.” Because
there is no disease or infection within the meaning of ORS 656.802(1)(a), it is
unnecessary to address the issue of whether medical services were required.2

     In conclusion, we find that claimant’s occupational disease claim is not
compensable. Accordingly, we affirm.

                                                ORDER

        The ALJ’s order dated May 27, 2004 is affirmed.

        Entered at Salem, Oregon on June 21, 2005

Member Biehl dissenting.

       Contrary to the ALJ’s and the majority’s determination, I would conclude
that K-Mart v. Evenson, 167 Or App 46 (2000), supports a finding that medical
services were required in this case and, thus, that claimant sustained a compensable
occupational disease. Moreover, I would find that the employer is responsible for
the disputed occupational disease under the last injurious exposure rule (LIER).
Thus, I respectfully dissent.

      Before addressing the medical services issue, I first address whether “pleural
plaquing” is a disease. ORS 656.802(1)(a) generally defines an “occupational
disease” as a “disease or infection arising out of and in the course of employment
caused by substances or activities to which an employee is not ordinarily subjected

        2
            Claimant cites K-Mart v. Evenson, 167 Or App at 46, in arguing that he sustained a
compensable occupational disease. Evenson does not apply here because it involved an injury, not an
occupational disease, claim. Moreover, the Evenson court’s analysis focused on the need for medical
services, while in this case we have concluded that there is no “disease.” Thus, unlike Evenson, the issue
of whether medical services were required in this case need not be determined. Nevertheless, were we to
decide the issue, we would not find that medical services were required for claimant’s pleural plaquing
in light of the Burton/Notingham opinions. Such a conclusion would be consistent with the court’s
holding in Johnsen that an annual x-ray prescription to detect the future development of asbestosis or
an asbestosis-related condition (in the presence of pleural “shadows”) did not establish that the claimant
required medical services for an occupational disease.
                                    57 Van Natta 1621 (2005)                                     1624
or exposed other than during a period of regular actual employment * * *.” The
ordinary meaning of the term “disease” is “an impairment of the normal state of
the * * * body”; “sickness, illness.” Mathel v. Josephine County, 319 Or 235, 240
(1994). A “disease” is elsewhere defined as “any deviation from or interruption
of the normal structure or function of any part, organ, or system (or combination
thereof) of the body that is manifested by a characteristic set of symptoms and
signs and whose etiology, pathology, prognosis may be known or unknown.”
Dorland’s Illustrated Medical Dictionary, 478 (28th ed 1994).
       Here, Dr. Notingham explained that “pleural plaquing” is a thickening
of the lining of the chest and/or lung. (Ex. 40). While Dr. Notingham did not
expressly conclude that pleural plaquing was a “disease,” his opinion establishes
that the thickening of the lining of claimant’s chest constitutes a deviation from
the normal structure of the body or an impairment of the normal state of the body.3
Thus, it constitutes a “disease.”
       Under workers’ compensation law, however, an occupational disease
is not compensable unless it results in disability or death or requires medical
services. ORS 656.802(1)(a). In this case, there is no death or disability.
The compensability issue turns on whether medical services were required.

       In Evenson, the court explained that, under ORS 656.005(7)(a), the harm,
damage or hurt that is sufficient to amount to an “injury” is one “requiring medical
services or resulting in disability or death.” According to the Evenson court, it
is sufficient if the injury requires only medical services. The medical services
need not be directed toward the cure of an existing, identifiable disease; rather,
diagnostic or other medical services will suffice. Based on the claimant’s treating
physician’s opinion that testing and treatment were required as a result of the
claimant’s work-related exposure to pathogens, the court held that the claimant’s
injury “required medical services.” 176 Or App at 51, 52.

       Here, we are not addressing an injury claim or exigent circumstances such
as those confronting the claimant in Evenson. Nonetheless, Evenson is instructive
regarding the question of whether claimant “required medical services.” As in
Evenson, where the claimant’s physicians indicated that treatment was required,
        3
           Although the employer argues that any finding that pleural plaquing is a disease would violate
the principles of SAIF v. Calder, 157 Or App 224 (1998) (Board is not an agency with specialized
medical expertise entitled to take official notice of technical facts within its specialized knowledge),
that case also allows us to draw reasonable inferences from the medical evidence. 157 Or App at 227.
Based on Dr. Notingham’s opinion, I would infer from the record that pleural plaquing is a disease.
                                     57 Van Natta 1621 (2005)                                    1625
claimant was advised to receive medical services in the form of a yearly x-ray.
Under such circumstances, I conclude that medical services were required for the
occupational disease and that this condition was related to claimant’s employment
based on Dr. Notingham’s persuasive opinion.4

       The majority alternatively suggests that an annual x-ray prescription to
detect the future development of asbestosis or an asbestosis-related condition
(in the presence of pleural plaquing) precludes a finding that claimant required
medical services for an occupational disease. In doing so, the majority relies on
Johnsen v. Hamilton Electric, 90 Or App 161 (1988), controls. Based on the
following reasoning, I submit that the Johnsen holding is distinguishable.

       To begin, after conducting its de novo review, the Johnsen court found that
there had “been no diagnosis of asbestosis and that, although the ‘findings’ on
claimant’s lung are consistent with a pre-asbestosis condition, he does not have
asbestosis.” Johnsen, 90 Or App at 164. Alternatively, even assuming that what
the findings amounted to were related to the claimant’s employment, the Johnsen
court then addressed the question of whether, in the absence of disability,
symptoms or a need for treatment, he suffered from an occupational disease. Id.
Based on its de novo finding that the claimant’s lung condition was not asbestosis
or any other disease, the Johnsen court reasoned that even if the condition was
related to the claimant’s employment, it was not one for which he was entitled
to compensation.

       Here, based on Dr. Notingham’s persuasive opinion, the medical evidence
establishes that claimant has a diagnosed condition; i.e., pleural plaquing, a
thickening of the lining of his lung and chest. Thus, in contrast to Johnsen
(where the court found that the medical evidence did not establish the presence
of asbestosis or any other disease), the medical record in this case supports
a finding that claimant has a diagnosed condition (pleural plaquing).

      Moreover, given its determination that the claimant was not suffering from
asbestosis or any other disease, the Johnsen court did not address the question
of whether his physician’s recommendation for annual x-rays established that he
required medical services. Thus, the Johnsen holding does not resolve the issue

        4
           The employer argues that claimant was not advised to have yearly chest x-rays because of the
pleural plaquing, but rather because of the need to monitor the possible progression of asbestos exposure.
That argument is unpersuasive given the close association between asbestos exposure and the pleural
plaquing, as explained in Dr. Notingham’s April 20, 2004 report. (Ex. 40).
                             57 Van Natta 1621 (2005)                         1626
of whether claimant requires medical services when his physician prescribes
“annual x-rays.” X-rays are a well-established medical procedure for diagnostic
and monitoring purposes. As such, they constitute “medical services.” See
ORS 656.245(1); OAR 436-010-0005(27) (“Medical service” means any medical,
surgical, diagnostic, chiropractic, dental, hospital, nursing, ambulances, and other
related services, and drugs, medicines, crutches and prosthetic appliances, braces
and supports and where necessary, physical restorative services.)

       Under such circumstances, I conclude that claimant required medical
services (in the form of attending physician-prescribed annual x-rays to monitor
his diagnosed work-related pleural plaquing condition). Consequently, the record
establishes that claimant has sustained a compensable occupational disease.

      Because I consider the claim compensable, the responsibility issue must be
addressed. Under the LIER, responsibility for claimant’s lung condition is initially
assigned to the last potentially causal employment. If an injured worker receives
medical treatment before experiencing time loss due to the condition, then the
date of first medical treatment is determinative for assigning initial responsibility.
Timm v. Maley, 125 Or App 396, 401, rev den 310 Or 81 (1994).

       Here, claimant first sought medical treatment for the disputed condition
from Dr. Notingham in February 2003. His most recent employment before that
time was for the employer. Therefore, initial responsibility would be assigned to
the employer. Timm, 125 Or App at 401. In order for responsibility to be shifted
to a previous employer, it must be established that it was impossible for claimant’s
work for the employer to have caused the condition or that claimant’s prior work
was the sole cause of the condition. Roseburg Forest Products v. Long,
325 Or 305, 313 (1997).

       Dr. Notingham opined that it was likely that claimant’s work exposure for
the Navy and for employer caused the pleural plaquing. Moreover, Dr. Notingham
confirmed that it was “possible” that his work for the employer contributed to
the disputed condition. (Ex. 40). Because the record does not establish that
it was impossible for claimant’s employment for the employer to have caused
his condition or that prior employment was its sole cause, responsibility remains
with the employer.

      Because I disagree with the majority’s finding that the occupational disease
claim is not compensable, I dissent.

				
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