Oregon Court Reiterates that “Susceptible to” Does Not Equate with “Preexisting Condition”

Court Nevertheless Reverses and Remands Board’s Decision That Had Awarded Benefits

The Court of Appeals of Oregon recently reiterated that a mere susceptibility or predisposition that does not contribute to the cause of symptoms or a need for treatment is not a preexisting condition within the occupational disease context. Nonetheless, the Court found that the Board’s conclusion that a claimant’s apophysitis—an inflammation in part of the claimant’s foot—was not caused, at least in part, by a congenital condition was unsupported by substantial reason since the medical evidence indicated the congenital condition may have actively contributed to the claimant’s disabling condition [In re Comp. of David D. Dunn, 297 Ore. App. 206, 2019 Ore. App. LEXIS 545 (Apr. 24, 2019)]. Accordingly, remand was required for application of the appropriate legal standard.


In some states, such as Oregon, the employer doesn’t always take the employee “as it finds him/her.” For example, with regard to an occupational disease claim, the claimant must prove that employment conditions were the “major contributing cause” of the disease [Ore. Rev. Stat. § 656.802(2)(a)]. Not only that, but preexisting conditions are deemed to be “causes” in determining the major contributing cause [see Ore. Rev. Stat. § 656.802(2)(e)].

In the instant case, claimant had a congenital condition in his foot known as “unfused apophysis” of the fifth metatarsal, meaning that a small bone on the outside of his foot had not fused to the metatarsal bone but was instead attached by fibrocartilaginous material. Claimant, who worked for the employer in a hospital setting, was on his feet and walked all day, except during breaks. Claimant had not previously experienced symptoms due to his apophysis, but developed pain in his foot that gradually worsened over a period of months. Medical experts diagnosed the condition as apophysitis, an inflammation of the fibrocartilaginous attachment between the pieces of the unfused apophysis. Claimant’s condition could occur only because of the apophysis and the micro-motions caused by the tendon tugging on the unfused fibrocartilaginous attachment between the pieces of the unfused apophysis during walking.

Claim Denied on Major Contributing Cause Grounds

Claimant’s treating physician (“Loveland”) opined that a person can have apophysis for his entire life without experiencing any symptoms, and that claimant’s inflammation was work-related, caused by the activity of walking. Another physician conducted an examination of claimant on behalf of SAIF and concluded that claimant’s work likely exacerbated claimant’s symptoms but did not pathologically worsen the unfused metatarsal apophysis. Based on this second opinion, SAIF denied the claim, stating that claimant’s work was not the major contributing cause of the condition.

ALJ/Board Decision

An ALJ and the Board overturned SAIF’s denial. The ALJ determined that Loveland’s opinion was more persuasive and that claimant’s work was the major contributing cause of his inflammation or apophysitis. The ALJ’s analysis turned on the doctor’s conclusion that the apophysis was a “passive contributor” that merely made claimant more susceptible to apophysitis. The Board adopted the ALJ’s order with supplementation. Citing existing case law, the Board reasoned that under ORS 656.005(24(c), a condition that merely rendered a claimant more susceptible to infection or disease could not be considered a “cause” for the purpose of determining the major contributing cause of an occupational disease.

SAIF’s Appeal

SAIF took issue with the board’s analysis, contending that ORS 656.004(24)(c) was inapplicable in the occupational disease context, arguing further that the Board and the Court of Appeals had mistakenly referred to ORS 656.005(24)(c) in cases involving occupational disease claims, when the statute’s text clearly applied only to injury claims.

Court of Appeals Decision

The Court agreed with SAIF that in earlier cases it should not have cited 656.004(24)(c) as a source for its conclusion that susceptibility or predisposition that does not contribute to the cause of an occupational disease is not a preexisting condition within the context of occupational diseases. Nevertheless, relying upon Liberty Northwest Ins. Corp. v. Spurgeon, 109 Ore. App. 566, 820 P2d 851 (1991), rev. den., 313 Ore. 210 (1992), the Court said that mere susceptibility or predisposition that does not contribute to the cause of symptoms or a need for treatment is not a preexisting condition within the occupational disease context. Moreover, the Court said it was adhering to its conclusion in Multnomah County v. Obie, 207 Ore. App. 482, 142 P3d 496 (2006), that the statute’s legislative history showed a clear intention that, with respect to both injury and occupational disease claims, susceptibilities that did not actively contribute to the cause of a condition were not to be weighed in determining major contributing cause.

Still Not Clear that Claimant Should be Awarded Benefits

With just a few paragraphs left in its opinion, the Court appeared to take an “about face.” The claimant appeared to be “home free.” Observing a point already made, the Court said that whether claimant’s apophysis constituted a mere susceptibility or predisposition or, alternatively, a preexisting condition, was a medical question. The court noted that the board, in adopting the ALJ’s order, also adopted Loveland’s description of claimant’s condition: “the tugging of the tendon on the fibrous tissue around the unfused bone.” The Court mused that it would seem, therefore, that the unfused nature of the apophysis contributed to the development of claimant’s symptoms “in more than a passive way” [Opinion, p. 20].

Might Be Preexisting Condition

The Court continued:

The anatomical anomaly allowed the motion of the tendon to pull on the fibrous tissues of the unfused apophysis and cause the inflammation. If claimant’s unfused apophysis, combined with the micromotion of claimant’s tendon pulling on the fibrous tissue when claimant walked, caused the apophysitis, then claimant’s apophysis would properly be characterized as a preexisting condition under ORS 656.005 (24)(b), and a cause that must be weighed under ORS 656.802(2)(e) [Opinion, p. 20].

The Court acknowledged that Loveland also concurred in a statement by claimant’s attorney that claimant’s apophysis “merely made [claimant] susceptible to apophysitis.” In the Court’s mind, the conclusion that the apophysis merely made claimant susceptible appeared to be inconsistent with the doctor’s specific description of the mechanical cause of the inflammation.

Remand Required

The Court concluded that the Board’s finding that claimant’s apophysis did not itself actively contribute to claimant’s disability or need for treatment was not supported by substantial reason. It remanded the Board’s order for reconsideration so that it could resolve the apparent inconsistency and apply the correct legal standard to an evaluation of the cause of claimant’s apophysitis.

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