Wagner v. Jeld Wen, Inc.
Annotate this Case
Download PDF
FILED: April 25, 2012 IN THE COURT OF APPEALS OF THE STATE OF OREGON In the Matter of the Compensation of Ronald O. Wagner, Claimant. RONALD O. WAGNER, Petitioner, v. JELD WEN, INC., Respondent. Workers' Compensation Board 0906088 A147644 Argued and submitted on March 28, 2012. Jodie Anne Phillips Polich argued the cause for petitioner. With her on the briefs was Law Offices of Jodie Anne Phillips Polich, P.C. Eric B. Mitton argued the cause for respondent. With him on the brief was Hornecker, Cowling, Hassen & Heysell, L.L.P. Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge. ORTEGA, P. J. Affirmed. 1 ORTEGA, P. J. 2 Claimant seeks judicial review of an order of the Workers' Compensation 3 Board holding that he failed to establish a compensable injury relating to a workplace 4 incident in which a coworker struck claimant in the groin with a retractable tape measure. 5 Claimant asserts that the workplace incident was a material contributing cause of his need 6 for medical services. We affirm the board's decision. 7 The facts are not disputed. While claimant, who is a carpenter, was 8 performing the duties of his job, a coworker, in a teasing gesture, pulled a tape measure 9 out to arm's length and let the heavy end swing and strike claimant in the groin. Claimant 10 fell to his knees but, at the time, experienced only mild and temporary discomfort. He 11 continued performing his regular work duties that day and did not experience any other 12 pain or symptoms. The next day, a Thursday, claimant began the day without pain or 13 other symptoms. He reported to work and completed his shift. During that day, 14 however, claimant noticed that his right testicle began to swell and cause him some 15 discomfort. Although claimant did not experience pain Thursday night and had no 16 trouble sleeping, he awoke Friday morning to find his right testicle red, swollen, and 17 extremely painful. 18 Claimant was unable to report for work on Friday and was examined by his 19 treating physician, Dr. Gailis. Claimant had elevated blood pressure and a fever, as well 20 as marked swelling, redness, and tenderness in the right testicle. Accordingly, Dr. Gailis 21 ordered an ultrasound, a blood test, and a urinalysis. The tests revealed signs of an 1 1 infection, and, as a result, claimant was hospitalized and started on a course of antibiotics. 2 Dr. Gailis and the urological specialist who later reviewed claimant's records ultimately 3 agreed that the infection was due to a viral or bacterial disease rather than trauma 4 associated with the workplace incident. 5 Claimant sought compensation and employer denied his claim. After a 6 hearing, the Administrative Law Judge (ALJ) upheld the denial. On review, the board 7 adopted the ALJ's order, which concluded that the work incident "was not a material 8 contributing cause of his subsequent disability or medical services." In reaching that 9 conclusion, the board observed that, although claimant had clearly "received 'medical 10 services' following the * * * work incident," the "real question * * * is whether those 11 services were materially due to the incident." Given that the case presented "an expert 12 medical causation question" and that the experts agreed that claimant's "condition and 13 need for medical services was not related to the * * * work event," the board concluded 14 that "claimant did not meet his burden of proving that it is more likely than not that the * 15 * * work event was a material contributing cause of his subsequent disability or need for 16 medical services." 17 On review, relying on K-Mart v. Evenson, 167 Or App 46, 1 P3d 477, rev 18 den, 331 Or 191 (2000), claimant asserts that the board erred in determining that the 19 workplace incident did not require the subsequent medical services--those are, the 20 diagnostic services claimant obtained to determine the cause of the groin pain. He 21 acknowledges that, pursuant to ORS 656.005(7)(a), he had the burden of proof to 2 1 establish that the workplace incident "was a material contributing cause of his * * * need 2 for medical services." In his view, he met that burden and established a compensable 3 claim under ORS 656.005(7)(a). 4 ORS 656.005(7)(a) provides: 5 6 7 8 9 "A 'compensable injury' is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings * * *." 10 "The statute does not require that a claimant's injury must both result in medical services 11 and in disability or death. It is sufficient if the injury 'requir[es] medical services.'" K- 12 Mart, 167 Or App at 50 (brackets in original); see also ORS 656.005(7)(d) (defining 13 "nondisabling compensable injury" as "any injury which requires medical services only"). 14 Furthermore, the "medical services need not be directed toward the cure of any existing, 15 identifiable disease; diagnostic or other medical services will suffice." K-Mart, 167 Or 16 App at 50. 17 However, the mere fact that a person "has sought medical services does not 18 establish that one has a compensable injury." Barkley v. Corrections Div., 111 Or App 19 48, 53, 825 P2d 291 (1992) (citing Brown v. SAIF, 79 Or App 205, 207-08, 717 P2d 20 1289, rev den, 301 Or 666 (1986)). Rather, "the statute provides that the injury require 21 medical services." K-Mart, 167 Or App at 51 (emphasis in original). 22 23 In K-Mart, while working, the claimant assisted a man in a wheelchair. The man 3 1 2 3 4 5 "had defecated and had feces and blood on his hands. In the process [of assisting the man], claimant was exposed to the blood and feces, which also got on her hands. At the time, claimant had sores on her hands, which were the result of an unrelated medical condition. Afterwards, the man told claimant that he was HIV positive, and he appeared to be very ill." 6 167 Or App at 48. As a result, the claimant was urged by an emergency room physician 7 to "come to the hospital as soon as possible and to seek prophylactic treatment for 8 possible exposure both to HIV and hepatitis." Id. We held that the claimant's injury was 9 compensable because it required medical services: the claimant "had been exposed to 10 serious, even life-threatening, pathogens, and the emergency room physician she 11 consulted believed that the exposure required both testing and prophylactic treatment." 12 Id. at 51. Furthermore, the claimant's treating physician later agreed that both testing and 13 treatment were required as a result of the exposure. 14 In contrast, here, the record supports the board's finding that the workplace 15 incident did not require claimant to seek medical services. Although claimant initially 16 felt minor and temporary discomfort when he was struck in the groin, that discomfort did 17 not last and claimant took no action at that time. It was not until two days after the 18 workplace incident that, as a result of severe pain and swelling, claimant sought medical 19 attention. However, the pain that caused claimant to seek medical attention was the result 20 of an infection that was not caused by the workplace incident. In other words, it was the 21 pain that he was suffering that required claimant to obtain medical services and, given 22 that claimant's pain was unrelated to the workplace incident, the incident cannot be said 23 to have required the diagnostic services. Under those circumstances, the board did not err 4 1 in determining that claimant failed to establish a compensable injury under ORS 2 656.005(7)(a). 3 Affirmed. 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
