FILED: October 4, 2000
In the Matter of the Compensation of
Geoffrey R. Lewis, Claimant.
SAIF CORPORATION
and OREGON STATE UNIVERSITY,
Petitioners,
v.
GEOFFREY R. LEWIS,
Respondent.
En Banc
Judicial Review from Workers' Compensation Board.
Argued and submitted July 19, 1999; resubmitted en banc May 10, 2000.
David L. Runner, Special Assistant Attorney General, argued the cause and filed the brief for petitioners.
Robert J. Thorbeck argued the cause and filed the brief for respondent.
Before Deits, Chief Judge, and Edmonds, De Muniz, Landau, Haselton, Armstrong, Linder, Wollheim and Brewer, Judges.
LINDER, J.
Reversed.
Wollheim, J., dissenting.
LINDER, J.
Employer seeks judicial review of a Workers' Compensation Board (Board) order concluding that claimant's claim for a "toxic exposure condition" is compensable. The compensability issue centers on the meaning and application of the statutory requirement that the claim must be "established by medical evidence supported by objective findings." ORS 656.005(7)(a); ORS 656.802(2)(d). We conclude that the requirement of "objective findings" is not satisfied if a medical expert merely listens to a patient's description of his or her symptoms and, believing the patient and without any verification process, relies on that description to form a diagnosis. We also conclude that, in this case, claimant failed to present "medical evidence supported by objective findings" to establish his claim. We therefore reverse the Board's order.
The Board found the following facts:
"Claimant worked as a bioscience research technician for [employer]. On February 11, 1997, claimant's work involved cleaning a building which contained insecticides, herbicides and fungicides in liquid, powder and granular forms. Claimant and his co-workers moved the chemicals and cleaned the room. Claimant also scraped paint from the ceiling and walls to prepare them for repainting. The room was dusty and the work stirred up dust.
"Claimant wore protective clothing, including a charcoal respirator mask. The mask leaked. Claimant also wore goggles part of the time, but he took them off when they became fogged.
"During the job, claimant experienced fatigue and eye irritation. At about 3 p.m., after working, claimant felt 'flat,' disoriented, confused, and 'funny in the eyes.' He experienced eye irritation, tearing, coughing, and wheezing on his way home. That evening, claimant noticed a 'yellowish-whitish' powder in his nostrils. He had difficulty concentrating. By the next morning, claimant had a sore throat, sore neck, fatigue, dizziness, tinnitus, headache, sinus congestion, bright yellow phlegm and sputum, a chemical taste in his mouth, and vision abnormalities."
Claimant did not seek medical attention until three weeks after his February 11, 1997, exposure. On March 3, 1997, he saw Dr. Huff, who noted that claimant reported "persistent [symptoms] of Tinnitus, [headache] and fatigue primarily." Huff observed that the case was a "difficult one to assess as there's no objective data." He referred claimant to Dr. Stringham, an industrial medicine specialist.
Stringham saw claimant only once, on March 4, 1997. In the "subjective" portion of his report, Stringham recounted claimant's description of his symptoms, which had "mostly subsided" by that time:
"By the next day [after the exposure], [claimant] had a mild headache, sense of malaise, weakness, and difficulty concentrating. He had a pressure in his head and his sinuses. He noted ringing in the ears. He had a sore throat. He felt like he was disoriented at times. He felt on the morning of 02/12/97 he brought up some yellow sputum and then blood tinged sputum later in the day. On 02/12/97, he returned to the area [where he had been exposed] and painted with spray paint the next day. Over the next few days, he developed fatigue, anorexia, difficulty concentrating. Although he didn't feel well, he presumed the symptoms would subside. He continued to have malaise, tinnitus, headache, sinus ache, through the following week of 02/17/97 through 02/21/97. By 02/21/97, he started to feel more normal, although he still had some tinnitus and still felt some pressure in the back of the head around the right ear. He still had a mild headache."
In the "objective" portion of his report of his examination of claimant, Stringham noted that claimant was "in no acute distress." Claimant's sinuses were "nontender." His hearing was "normal to normal conversation." All laboratory results were normal, except for "an elevated bilirubin total for reasons unclear, but possibly related to the exposure." Stringham's "assessment" of claimant's condition was "[t]oxic exposure to multiple chemicals." Stringham further noted that claimant was "getting better spontaneously."
Later, Stringham reported that, when he saw claimant in early March 1997, claimant was "feeling that he had recovered about 70%." Stringham believed that claimant was "entirely credible." He reported:
"On a clinical basis he has an exposure. He developed symptoms in a time frame consistent to the exposure. The symptoms have resolved. In my mind it is far more probable on a medical basis that the exposure, given the chemicals involved and the circumstances of his exposure, is the cause of the symptoms."
Stringham concluded "to a reasonable medical probability" that claimant's symptoms, "including visual changes, malaise, tinnitus, and headache were related to his toxic exposure on February 11, 1997."
In May 1997, claimant saw Drs. Quarum, Berlin, and Burton, all specialists in occupational and environmental toxicology. Quarum directed that an audiogram be performed on claimant, which showed normal hearing in both ears. Quarum concluded that "[t]here [was] no evidence that [claimant] actually had a specific or toxic exposure, and there [was] also no correlation of his tinnitus with any of the chemicals that he was exposed to based on the information provided." Quarum's "best guess" as to the etiology of claimant's tinnitus, "given his negative audiologic history," was "possibly due to Aspirin, which is well known as a salicylate to cause tinnitus." Claimant admitted taking aspirin "on a regular basis," although the amounts he said he took "would not be considered sufficient to cause this condition unless he actually is taking quite a bit more." Burton and Berlin concluded that claimant's complaints were not work-related and more likely were due to some other medical condition that coincided with the possible toxic exposure at work. Quarum and Burton both suggested that any link between claimant's symptoms and his possible exposure to toxic chemicals was based solely on conjecture.
SAIF denied the claim, and claimant requested a hearing. Following the hearing, the administrative law judge (ALJ) concluded that claimant had not proved the compensability of his claim. The ALJ viewed the case as a battle of the experts regarding the causal link between claimant's work and the symptoms that he experienced. The ALJ determined that Stringham's opinion supporting compensability was insufficient because of a "vacuum in the medical literature" regarding the effects of exposure to the multiple chemicals to which claimant was exposed.
On review, a divided Board reversed. The Board rejected the ALJ's conclusion that proving compensability necessarily requires support from "medical literature." The Board determined that Stringham's opinion was "more persuasive than those of Drs. Berlin, Burton, and Quarum" because Stringham's "reasoning and conclusions are based on a more accurate history and are more consistent with claimant's clinical course[.]" The Board also rejected employer's contention that claimant had not produced "medical evidence supported by objective findings." ORS 656.005(7)(a); ORS 656.802(2)(d). In rejecting that contention, the Board reasoned:
"[Employer] argues that claimant's headache, tinnitus, and fatigue symptoms were not verifiable objective findings under ORS 656.005(19). We agree with regard to those symptoms. However, we note that Dr. Stringham reported: 'On a clinical basis, [claimant] has an exposure.' Dr. Stringham's opinion in this regard is supported by claimant's additional symptoms, which included irritated eyes, sinus congestion, and production of bright yellow phlegm and sputum. Because the latter symptoms are observable and verifiable, they are 'objective' under the statute."
(Record citations omitted.)
A dissenting Board member maintained that any evidence of the existence of claimant's symptoms was "purely subjective."
"There are no examination findings which would qualify as objective findings in this record. To the contrary, Dr. Huff, who first examined claimant, reported '[t]his is a difficult one to assess as there's no objective data.'
"Claimant was next examined by Dr. Stringham, who had multiple tests performed. The results of the tests were all normal. Dr. Stringham further noted 'no significant ongoing problems' other than the subjective symptoms previously noted.
"Because no medical expert made findings which were 'reproducible, measurable, or observable,' [see ORS 656.005(19),] claimant's claim must fail for lack of objective findings supporting the medical evidence relating the alleged need for treatment to the work exposure. Based on this record, claimant's reporting alone is insufficient to satisfy the statute's requirement for objective findings 'in support of medical evidence.'"
(Emphasis in original; record citations omitted.) The dissent also would have concluded that the claim was not compensable because it was not supported by a preponderance of the medical evidence.
On review, employer relies on both of the points made in the Board's dissenting opinion. That is, employer argues that the claim in this case was not "established by medical evidence supported by objective findings" and that the Board erred in relying on Stringham's opinion because it is based on what employer calls "medical speculation of a work-related cause." Because we agree with the first contention, we do not reach the second. (1)
In making its first contention, employer frames the issue as a legal one: whether a claimant's description of his or her symptoms--a description accepted by a physician but not verifiable by the doctor's observations, tests, or measurements--alone can amount to "objective findings" that support medical evidence. So framed, the issue turns on statutory interpretation. Claimant does not respond directly to employer's argument. Without attempting to articulate the applicable legal standard, claimant merely "disagrees with [employer's] characterization of the record" and argues that substantial evidence supports the Board's conclusion that claimant produced "medical evidence supported by objective findings" in this case. (2) We begin by identifying the correct legal standard and then turn to whether substantial evidence satisfies claimant's burden under that standard.
Both the injury and the occupational disease statutes require that a claim be "established by medical evidence supported by objective findings." ORS 656.005(7)(a); ORS 656.802(2)(d). ORS 656.005(19) defines the term "objective findings."
"'Objective findings' in support of medical evidence are verifiable indications of injury or disease that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm. 'Objective findings' does not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable."
To determine the meaning of the requirement that a claim be "established by medical evidence supported by objective findings" and of the meaning of the definition of "objective findings," we look first to the text and context of the pertinent provisions. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).
The threshold requirement that a claim must be "established by medical evidence supported by objective findings" itself reveals the statute's emphasis on requiring a degree of certainty and reliability to prove a claim. The word "establish," for example, means "to provide strong evidence for" and to "determine exactly and with certainty." (3) "Evidence" means "an outward sign: indication: * * * something that furnishes or tends to furnish proof." (4) That much is familiar territory, in terms of what those words are readily understood to mean in common parlance. But the words are worth careful examination as a reminder that, in and of themselves, they are infused with the idea that proof to establish a claim must reflect confidence in the diagnosis rather than mere speculation or conjecture.
The statute's use of the phrase "objective findings" is less familiar in that it is not commonly used in general day-to-day conversation. The legislature has, however, provided a specific definition for it, declaring that objective findings are "verifiable indications of injury or disease" that include, but are not limited to, "range of motion, atrophy, muscle strength and palpable muscle spasm." That part of the definition is replete with words conveying that the medical evidence must be supported by an empirical confirmation of the existence of an injury or disease. Indeed, a key term in the definition is the word "verifiable," meaning "capable of being verified" and "susceptible to the possibility of being either theoretically or actually proved true or false by reference to empirical facts." (5) In turn, "verify" in this context means "to prove to be true: establish the truth of: * * * to check or test the accuracy or exactness of: confirm the truth or truthfulness of by or as if by comparison with known data or a recognized standard." (6) Similarly, an indication is "something (as a signal, sign, suggestion) that serves to indicate," (7) that is, "to point out or point to or toward with more or less exactness: show or make known with a fair degree of certainty." (8) Consistent with the statute's insistence on empirical support for proffered medical evidence, the "verifiable indications" listed as examples in the definition (e.g., range of motion, atrophy, muscle strength and "palpable" muscle spasm) all are tangible or quantifiable signs or symptoms with potential diagnostic significance to a medical expert.
The statutory definition does not stop there, however. The second sentence goes on to define "objective findings" by declaring what they do not include. Specifically, they do not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable. Again, the standard dictionary definitions of the key terms are telling. All of them have to do with determining, by reliable methods and standards, the existence of a state or condition through actual testing, scrutinizing, and ascertainment. (9) Thus, by converse implication, the second sentence adds the understanding that objective findings, to provide the necessary support for medical evidence, must be physical findings or subjective responses to examinations that are verifiable in the sense that they can be objectively or empirically confirmed.
To be sure, laboring through dictionary definitions can seem tedious and at times artificial. But the exercise is worthwhile here because it highlights the consistent nature of the terms that the legislature used to give meaning to the phrase "objective findings." Repeatedly, the legislature chose words that convey precision and reliability in empirically establishing the existence of an injury or disease based on an expert's actual examination and testing of the claimant. (10) That conclusion, moreover, is inescapable considering the broader statutory context. As already described, the starting point of the analysis is the requirement that a claim be "established by medical evidence supported by objective findings." ORS 656.005(7)(a) (emphasis added); ORS 656.802(2)(d) (same). Findings cannot logically be described as "supporting" particular medical evidence if the expert providing that evidence did not himself or herself make the findings or reasonably rely on some other qualified individual who did so.
Our conclusions about the statutory language are reinforced by one other aspect of the context. Context includes not only case law, but earlier versions of the statute in question. SAIF v. Walker, 330 Or 102, 109, 996 P2d 979 (2000); PGE, 317 Or at 611. Based on an earlier version of the statutory definition of "objective findings," both the Board and this court held that a physician's acceptance of and reliance on a claimant's description of his or her symptoms, without more, could satisfy the "objective findings" standard. SAIF v. Williamson, 130 Or App 391, 395, 882 P2d 621 (1994), rev den 320 Or 507 (1995); Georgia-Pacific Corp. v. Ferrer, 114 Or App 471, 474, 835 P2d 949 (1992); Suzanne Robertson, 43 Van Natta 1505 (1991). After those decisions, the 1995 Legislature amended the statutory definition of "objective findings." Or Laws 1995, ch 332,