Carter v. Waste Management Disposal Services of Oregon

In SAIF, the Court held that a medical expert’s “opinion is persuasive” but “in all events, a medical expert’s opinion that an increase of symptoms signifies an actual worsening of a particular compensable condition satisfies the actual worsening standard” as found in ORS 656.273. SAIF v. January, 166 Or App 620, 624 (2000).

Claimant sought judicial review of a decision made by the Workers’ Compensation Board (“the Board”) which upheld employer’s denial of Claimant's aggravation claim.  Claimant first assigned error to the Board’s alleged creation of a rebuttable presumption that the Claimant's burden of proof must respond to or rebut the findings of an independent medical examination (“IME”). Claimant's second assignment of error was that the Board’s finding that Claimant's medical doctor failed to respond or rebut that the IME lacked substantial evidence. On review, Claimant argued that the Board applied the wrong legal standard to determine compensability when it applied a per se rule regarding the Claimant's treating physician. In response, the Board argued that rebuttal was necessary as a matter of factual persuasiveness and therefore not a matter of legal sufficiency. In SAIF, the Court held that a medical expert’s “opinion is persuasive” but “in all events, a medical expert’s opinion that an increase of symptoms signifies an actual worsening of a particular compensable condition satisfies the actual worsening standard” as found in ORS 656.273. SAIF v. January, 166 Or App 620, 624 (2000). The Court held that, as an initial matter, a per se rule requiring rebuttal is incident with the statutory standard for compensability. Additionally, the Court held that a plausible reading of the original order by the Board is not a per se rule, but rather an explanation of why the evidence in the case was found to be unpersuasive.

Affirmed.