FILED: SEPTEMBER 28, 2000

In the Matter of the Compensation of
KATHLEEN A. ROBINSON, Claimant.

Petitioner on Review,

v.

NABISCO, INC.,

Respondent on Review.

On review from the Court of Appeals.*

Argued and submitted November 3, 1997. Reassigned February 3, 1998.

Robert Wollheim, of Welch, Bruun, Green & Wollheim, Portland, argued the cause and filed the petition for petitioner on review.

David L. Johnstone, of Vavrosky, Maccoll, Olson & Miller, Portland, argued the cause for respondent on review. With him on the briefs were Karli L. Olson, Portland, and Patric J. Doherty, Portland.

Kimberley Chaput, of Pozzi, Wilson, Atchison, LLP, Portland, filed a brief on behalf of amici curiae Oregon Workers' Compensation Attorneys and Oregon Trial Lawyers Association.

David L. Runner, Assistant Attorney General, Salem, filed a brief on behalf of amici curiae SAIF Corporation and Max J. Kuney Company.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, and Kulongoski, Justices.**

DURHAM, J.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings.

*Judicial review from the Workers' Compensation Board. 143 Or App 59, 923 P2d 668 (1996).

**Fadeley, J., retired January 31, 1998 and did not participate in this decision. Graber, J., resigned March 31, 1998 and did not participate in this decision. Leeson and Riggs, JJ., did not participate in the consideration or decision in this case.

DURHAM, J.

In this workers' compensation case, the issue is whether claimant is entitled to compensation for an injury suffered during a compelled medical examination (CME) under ORS 656.325(1)(a) (1) that her employer requested. The Workers' Compensation Board (Board) upheld employer's denial of compensation, and the Court of Appeals affirmed. Robinson v. Nabisco, Inc., 143 Or App 59, 923 P2d 668 (1996). For the reasons stated below, we reverse the decision of the Court of Appeals and the order of the Board, and remand the case to the Board for further proceedings.

The facts in this case are undisputed. In 1981, claimant sustained a compensable low back strain and leg radiculopathy, both on her right side, while working. Between 1981 and 1991, claimant aggravated her back condition several times. Claimant received permanent partial disability benefits and was treated at various times during that period. Claimant has not worked since April 1988. In April 1991, claimant and employer entered into a disputed claim settlement in which employer denied an upper-back injury as a new injury or occupational disease, but continued acceptance of claimant's other conditions as an aggravation of her original 1981 claim.

In June 1992, at employer's direction, claimant participated in a CME with Dr. Watson. During the examination, claimant complained of back pain. Watson directed claimant to raise her legs while lying on her back. Claimant stated that she could not raise her right leg. Watson then asked claimant to raise her left leg. When claimant raised her left leg, Watson moved it to a position beyond the point where claimant had moved it. Claimant felt immediate pain in the left low back and hip area. Medical tests indicated that Watson's maneuver had caused a new injury, specifically, a disc herniation on the left side. Doctors recommended surgical treatment for that injury.

Claimant sought workers' compensation for the treatment and surgery. Employer partially denied the claim, and claimant requested a hearing. In March 1993, claimant underwent surgery with another doctor to repair the disc herniation on the left side.

Before the administrative law judge (ALJ), claimant argued that her CME injury was compensable for either of two reasons, which we identify below. Her compensability arguments concern the application of ORS 656.005(7), which provides, in part:

"(a) A 'compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, 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, subject to the following limitations:

"(A) No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.

"(B) If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."

(Emphasis added.)

First, claimant contended that the CME injury was a new compensable injury and that the injury and her need for treatment arose out of and within the course of employment. (2) ORS 656.005(7)(a). Second, claimant contended that the CME injury was compensable as a consequence of a compensable injury under ORS 656.005(7)(a)(A).

After a hearing in May 1993, the ALJ upheld employer's partial denial of claimant's injury. The ALJ did not analyze the facts to determine whether claimant's CME injury arose out of and in the course of her employment. The ALJ determined that the CME injury was a new injury that was a "consequence" of claimant's original injury. Accordingly, the ALJ applied the major contributing cause standard that governs the compensability of consequential conditions. See ORS 656.005(7)(a)(A) (setting out that standard). The ALJ concluded that claimant's CME injury was not compensable, because the major contributing cause of that injury was Watson's conduct during the CME "or the combination of that injury with some degree of preexisting degenerative disc disease in the spine," not claimant's original 1981 injury.

On review, the Board adopted the ALJ's order. The Board agreed with the ALJ that claimant had not demonstrated that the 1981 compensable injury was the major contributing cause of the 1992 CME injury. As noted, the Court of Appeals affirmed. This court allowed claimant's petition for review.

On review, petitioner contends that her CME injury is compensable under the following test stated by this court in Andrews v. Tektronix, Inc., 323 Or 154, 162, 915 P2d 972 (1996):

"In particular factual circumstances, various tests may prove helpful in measuring and conceptualizing the strength of the connection between the claimant's injury and employment. Still, the ultimate test is the same: Considering all the pertinent circumstances, are the temporal, spatial, circumstantial, and causal connections between the claimant's injury and employment sufficient to justify compensation, when sufficiency is evaluated in the light of the Act's policy of providing financial protection to workers who are injured in the course of employment, regardless of fault? Thus, when confronted with a test that purports to determine whether an injury sustained under a particular set of factual circumstances is compensable, we must ask, 'Is the test compatible with that formulation?'"

For the reasons that follow, we conclude that the connection between claimant's 1992 CME injury and her employment is sufficient to justify compensation. In addition, we conclude that the limitation in ORS 656.005(7)(a)(A), regarding a consequential condition, is inapplicable to this case. It follows from those conclusions that claimant's 1992 CME injury is a compensable injury.

Our task is to determine whether claimant's 1992 CME injury is a "compensable injury" under ORS 656.005(7)(a). Because we must construe the statute, the principles set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), guide our interpretation. We begin by considering the text and context of the statute. Id. at 610-11. We also consider, at the first level of analysis, prior case law from this court that interprets the same statutory wording, as well as other related statutes. State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998).

The text of ORS 656.005(7)(a) describes a series of legal issues that govern the determination whether an accidental injury is compensable. Under that statute, the first question is whether the claim concerns an accidental injury that "aris[es] out of and in the course of employment * * *." If the answer to that question is "yes," then the injury is compensable. ORS 656.005(7)(a)(A) and (B) state the bases, which the statute describes as "limitations," for determining the compensability of injuries and diseases denominated as "consequential" and "combined" conditions. Under the limitation that employer asserts is pertinent here, ORS 656.005(7)(a)(A), no injury or disease is "compensable as a consequence of a compensable injury" unless the compensable injury is the "major contributing cause" of the consequential condition. The phrase "compensable as a consequence of a compensable injury" indicates that the major contributing cause standard in that limitation applies only if the compensability determination depends on a showing that the injury or disease is a consequence of a compensable condition.

Following the analytical path that the text of ORS 656.005(7)(a) describes, we first inquire under that statute whether claimant's injury "aris[es] out of and in the course of" her employment. This court views the two prongs of that compensability test as two parts of a unitary "work-connection" inquiry that asks whether the relationship between the injury and the employment is sufficiently close that the injury should be compensable. Krushwitz v. McDonald's Restaurants, 323 Or 520, 526, 919 P2d 465 (1996); see also ORS 656.012(1)(c) (stating legislative finding that "those injuries that bear a sufficient relationship to employment * * * merit incorporation of their costs into the stream of commerce"). Thus, although the "arising out of" and "in the course of" prongs provide guidance, the unitary work-connection test does not supply a mechanical formula for determining whether an injury is compensable. We evaluate those factors in each case to determine whether the circumstances of a claimant's injuries are sufficiently connected to employment to be compensable. As this court stated in Rogers v. SAIF, 289 Or 633, 643, 616 P2d 485 (1980) quoting Allen v. SAIF, 29 Or App 631, 633-34, 564 P2d 1086 (1977):

"'The statutory phrase "arising out of and in the course of employment" must be applied in each case so as to best effectuate the socio-economic purpose of the Worker's Compensation Act: the financial protection of the worker and his/her family from poverty due to injury incurred in production, regardless of fault, as an inherent cost of the product to the consumer. 1 Larson, Workmen's Compensation Law