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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 (board) holding that he failed to establish a compensable injury relating to a  
4  workplace incident in which a coworker struck claimant in the groin with a retractable  
5  tape measure.  Claimant asserts that the workplace incident was a material contributing  
6  cause of his need 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, Gailis  
21  ordered an ultrasound, a blood test, and a urinalysis.  The tests revealed signs of an  

1  infection, and, as a result, claimant was hospitalized and started on a course of antibiotics.  
2  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  

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  "A 'compensable injury' is an accidental injury * * * arising out of  
6  and in the course of employment requiring medical services or resulting in  
7  disability or death; an injury is accidental if the result is an accident,  
8  whether or not due to accidental means, if it is established by medical  
9  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

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