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250 P.3d 389

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241 Or.App. 311, 250 P.3d 389

(Cite as: 241 Or.App. 311, 250 P.3d 389)

Or.App.,2011.

Dynea USA, Inc. v. Fairbanks

241 Or.App. 311, 250 P.3d 389

Court of Appeals of Oregon.

In the Matter of the Compensation of Tony L. Fairbanks, Claimant.

DYNEA USA, INC., Petitioner,

Tony L. FAIRBANKS, Respondent.

0701731; A141297.

Argued and Submitted Aug. 2, 2010.

Decided March 2, 2011.

Holding: The Court of Appeals, Rosenblum, J., held that MRSA infection suffered by claimant was an “injury,”

subject to material contributing cause standard in determining compensability.

Affirmed.

West Headnotes

413XVI(N)7 Accident or Injury and Consequences Thereof

413k1494 Diseases, Infections, and Poisoning

413k1497 k. Infections in general. Most Cited Cases

Workers’ Compensation 413 1530.3(1)

413k1530.3 Particular Diseases

413k1530.3(1) k. In general. Most Cited Cases

Evidence supported conclusion of Workers’ Compensation Board that methicillin resistant staphylococcus aure-

us (MRSA) infection suffered by claimant was sudden, rather than gradual, in onset, and, thus, was an “injury,” sub-

ject to material contributing cause standard in determining compensability, rather than an “occupational disease,” to

which heightened major contributing cause standard of compensability applied; claimant’s most recent treating phy-

250 P.3d 389

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241 Or.App. 311, 250 P.3d 389

(Cite as: 241 Or.App. 311, 250 P.3d 389)

sician opined that onset of claimant’s MRSA infection occurred coincident with the onset of his symptoms, rather

than at some earlier date, contemporaneous medical records describing mechanism of claimant’s injury, i.e., the rub-

bing of his left steel-toed work boot while working, supported treating physician’s opinion, and fact that claimant’s

symptoms grew worse over four subsequent days of work did not make condition gradual in onset. West’s Or.Rev.

Stat. Ann. §§ 656.005(7)(a), 656.802(1)(a).

413VIII(A)1 In General

413k517 k. Necessity that injury happen suddenly and be traceable to definite time, place, and occa-

sion; “event.”. Most Cited Cases

Workers’ Compensation 413 530

The proper analysis of whether an infection constitutes a disease, for which employment conditions must be the

major contributing cause in order to be compensable for workers’ compensation purposes, does not differ from the

analysis applied to a disease; in either case, the relevant distinction is whether the condition developed gradually or

as the result of a discrete event. West’s Or.Rev. Stat. Ann. § 656.802(1)(a).

ROSENBLUM, J.

This case requires us to determine whether the Workers‘ Compensation Board correctly concluded that claim-

ant’s condition—a methicillin resistant staphylococcus aureus (MRSA) infection—was an injury as opposed to a

disease for purposes of the Workers’ Compensation Law. For a disease to be compensable, employment conditions

As part of employer’s safety procedures, claimant, a millwright, was required to wear steel-toed boots while

working. Each year, claimant would purchase a new pair of the same particularly sturdy brand of boots, which

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241 Or.App. 311, 250 P.3d 389

(Cite as: 241 Or.App. 311, 250 P.3d 389)

would generally take two to three months to properly break in. Over the past six to seven years of wearing those

boots, claimant had never developed any problems when breaking in a new pair. However, while working on the

afternoon of December 12, 2006, claimant was wearing boots that he had been breaking in for approximately two

down after removing his boot and noticed a “large red area below the top of the boot, not knowing what it [was].”

Claimant continued to work over the next few days, although the red area became increasingly swollen and sore

to the point that claimant had trouble walking. The sore gradually developed into a pustule that, on the evening of

December 15, 2006, “broke” into a lesion with discharge, prompting claimant to seek treatment the next morning.

Claimant sought medical treatment on three occasions between December 15 and December 19, at which time he

cember 12, and thus, “I believe it is more likely than not that [claimant’s] infection was not related to his work or

workplace.”

In contrast, claimant’s treating physician, Dr. Abraham, wrote to claimant‘s counsel that, in his opinion, the

work boot, and more specifically, the “boot–caused abrasion” that claimant noticed on December 12, 2006, was the

major contributing cause of claimant’s need for treatment. In a later deposition, Abraham agreed with Leggett that

edged that claimant’s case was “not straightforward,” but opined that, based on the area of the wound, it was more

clinically likely that the work boot was involved in causing the need for treatment.

Employer denied claimant’s workers’ compensation claim for a “MRSA infection. Left shin” caused by “boot ir-

ritation.” Claimant requested a hearing, which was held on September 7, 2007. Relying on Leggett’s opinion that

(Internal citations omitted.) The ALJ then concluded that claimant’s work activities were not the major contrib-

uting cause of his infection, and upheld the self-insured employer’s denial of the claim.

The board reversed. Relying on Abraham’s opinion, the board reasoned that the infection most likely arose at

the same time that claimant’s symptoms did, on December 12, 2006. The board thus determined that claimant’s con-

dition was an injury and compensable under the material contributing cause standard. SAIF v. Pepperling, 237

250 P.3d 389

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241 Or.App. 311, 250 P.3d 389

(Cite as: 241 Or.App. 311, 250 P.3d 389)

FN1. In Pepperling, the question, as framed by the parties, was whether the claimant’s MRSA infection was

an injury or a consequential condition. 237 Or.App. at 82, 238 P.3d 1013. We decided, based on the medi-

cal evidence presented in that case, that substantial evidence supported the board’s determination that the

MRSA bacteria and developed gradually. Finally, it contends that, even if the onset of claimant’s condition coincid-

ed with when he first developed symptoms, as the board found, it still constituted a disease rather than an injury be–

cause the condition developed gradually over the course of four days.

[1] We begin with employer’s first argument. Employer argues that, as a matter of law, the board’s analysis of

claimant’s MRSA infection as an injury contravenes the definition of “occupational disease.” That is true, employer

ties to which an employee is not ordinarily subjected or exposed other than during a period of regular ac–

tual employment therein, and which requires medical services or results in disability or death[.]”

(Emphasis added.)

In Weyerhaeuser, the employer contended that a sudden allergic reaction to wood dust should be analyzed as a

disease rather than an injury, because the text of the occupational disease statute demonstrated legislative intent that

between a “disease” and an “injury” by reasoning that diseases are gradual, rather than sudden, in onset. Weyer-

haeuser, 166 Or.App. at 80–81, 998 P.2d 226 (citing O’Neal v. Sisters of Providence, 22 Or.App. 9, 537 P.2d 580

(1975), as endorsed by the Supreme Court in James v. SAIF, 290 Or. 343, 624 P.2d 565 (1981)). Thus, we construed

the term “disease,” as modified by the term “any” in ORS 656.802(1)(a) and (1)(a)(A), to encompass only condi–

tions the symptoms of which are gradual in onset. Weyerhaeuser, 166 Or.App. at 80–81, 998 P.2d 226. We held that

rather than suddenly.FN3

FN3. To that extent, we reject employer’s argument that Weyerhaeuser “was essentially disavowed in

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Smirnoff.” In Smirnoff, the employer argued that Weyerhaeuser stands for the proposition that, in determin-

ing if a condition is an injury or occupational disease, the proper examination is whether the symptoms of

the condition were sudden or gradual. 188 Or.App. at 447, 72 P.3d 118. We responded: “To the extent that

ther than the onset of the condition, to determine the nature of the claim, we disavow it.” Id. at 447–48, 72

P.3d 118. Nevertheless,

“[o]ur conclusion in Weyerhaeuser Co. was correct in light of the nature of the condition for which com-

pensation was sought, which the board described as ‘an immediate reaction to exposure to wood dust.’ *

[2] More relevant to this case, the term “infection,” as modified by the term “any” in ORS 656.802(1)(a), has

likewise never been defined by the legislature but has been interpreted by Oregon courts, at least implicitly, in a

manner consistently with the term “disease.” As we stated in O’Neal,

“in Oregon an occupational disease continues to be distinguished from a compensable injury in that the former

kept in mind that a disease or infection may give rise to a compensable claim for injury rather than for occupational

disease.”); K–Mart v. Evenson, 167 Or.App. 46, 1 P.3d 477, rev. den., 331 Or. 191, 18 P.3d 1098 (2000) (analyzing

claim as an industrial injury where a worker was put at risk of possible infection by HIV and hepatitis when her

hands, which had sores on them, were exposed to a customer’s bodily fluids). Thus, employer’s argument that an

infection can never be an injury does not square with how the phrase “any disease or infection” has been interpreted.

MRSA bacteria on his skin that eventually manifested in the symptoms claimant first ‘noticed’ on December 12,

2006.” In the alternative, employer contends that even if claimant’s condition arose on December 12, his claim

should, nevertheless, be analyzed as a disease because the condition still developed gradually, over the course of

four days. Claimant responds that we should affirm the board’s order, because substantial evidence in the record

supports the board’s, not the ALJ’s, conclusions regarding the onset of claimant’s MRSA infection.

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241 Or.App. 311, 250 P.3d 389

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our view of the evidence for that of the board. Garcia v. Boise Cascade Corp., 309 Or. 292, 295, 787 P.2d 884

(1990). If there are doctors on both sides of a medical issue, as there are in this case, “whichever way the Board

finds the facts will probably have substantial evidentiary support.” Armstrong v. Asten–Hill Co., 90 Or.App. 200,

“Here, it is unlikely that claimant had an MRSA infection before the discrete onset of symptoms on December

12, 2006. Indeed, according to Dr. Abraham, his most recent treating physician, claimant probably did not have an

MRSA infection before December 12, 2006. Dr. Abraham’s opinion in this regard is unrebutted. The contempora-

neous medical records describing the mechanism of claimant’s injury (i.e., the rubbing of his left work boot while

Lundmark, 63 Or.App. 261, 266, 663 P.2d 1303 (1983), rev. den., 296 Or. 350, 675 P.2d 492 (1984) (the claim-

ant’s back trouble coincided with jolting of the faulty loader, the fact that it grew worse over his subsequent em-

ployment did not make it ‘gradual in onset’).”

(Record citations and footnotes omitted; emphasis in original.) The board further explained why it considered

Leggett’s opinion to be unpersuasive.

We conclude that those reasons for relying on the opinion of Abraham are persuasive. We also conclude that

substantial evidence supports the board’s factual finding that the onset of claimant’s condition was sudden, coincid–

ing with the onset of his symptoms on December 12, 2006. The fact that claimant‘s symptoms grew worse over four

subsequent days of work did not make the condition “gradual in onset.” See LP Company v. Disdero Structural, 118

Or.App. 36, 38, 845 P.2d 1305 (1993) (back and neck pain that developed over three days of hanging sheetrock

The claimant filed a claim for an occupational disease, and the issue on review was whether claimant’s dia-

betes was the major contributing cause of his condition or a mere susceptibility; whether the infection was a

disease or injury was never at issue in that case, nor was it discussed to any degree. Id. at 146, 194 P.3d

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241 Or.App. 311, 250 P.3d 389

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854. For that reason alone, Murdoch does not apply here. We also note that the claimant in Murdoch, un-

like claimant in this case, could not trace the onset of his infection back to a specific triggering event. Id. at

upon which we could have based a determination that the claimant’s condition arose over a discrete period

of time. See Donald M. Drake Co., 63 Or.App. at 266, 663 P.2d 1303. Thus, employer’s argument that

Murdoch is analogous to this case is not well taken.