Oregon Court Says Ordinary Standard of Proof – Material Contributing Cause – Applies
A worker cut his finger on a piece of sheet metal at work. Several days later, he developed an infection diagnosed as methicillin resistant staphylococcus aureus (MRSA). The medical evidence indicated the bacteria that caused the infection was on the worker's skin at the time of the laceration and that the laceration provided a portal of entry for the organism to penetrate into the underlying subcutaneous tissues. When asked what had been the "major cause" of claimant's infection, a medical expert testified that both the presence of MRSA on the skin and the laceration were required to produce the infection (medical evidence indicated there was little chance the bacteria had been present on the sheet metal). While the carrier accepted the claim for the cut, it contended the infection was a consequence of the original injury and that under ORS § 656.005(7)(a)(A), the worker was required to show a higher level of causative proof; the "major contributing cause standard" applied, rather than the "material contributing cause" standard associated with the original injury itself. The ALJ and the Board concluded that since the infection arose directly from the industrial accident, the material contributing cause standard should be used. Accordingly, the worker received an award related not only to the original cut, but to the treatment and disability related to the infection. SAIF Corp. (the insurer) appealed.
Here's what the Court decided:
In SAIF Corp. v. Pepperling, 2010 Ore. App. LEXIS 1004 (Sept. 1, 2010), the Court of Appeals of Oregon affirmed. Substantive evidence supported the Board's finding that the worker developed an infection "as a primary consequence of the industrial accident (citing Albany General Hospital v. Gasperino, 113 Or. App. 411, 833 P. 2d 1292 (1992)). There was no "subsequent or superseding event." All the medical evidence tended to show that the incident at work broke the protective barrier of skin and allowed the MRSA that was present on the skin to enter the worker's tissues. The subtle distinction that SAIF was arguing was just not one that the Board was compelled to adopt. See generally Larson's Workers' Compensation Law, §§ 51.02, 51.03.
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