FILED: March 16, 2000

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Roland A. Walker, Claimant.

SAIF CORPORATION,
Insurer,
and GOLD CREEK CENTER, INC.,
Employer,

v.

ROLAND A. WALKER,

(WCB 93-07081; CA A89100; SC S44116)

On review from the Court of Appeals.*

Argued and submitted January 7, 1998.

Robert Wollheim, of Welch, Bruun, Green & Wollheim, Portland, argued the cause for petitioner on review. With him on the petition and brief on the merits was W. Todd Westmoreland, Tillamook.

David L. Runner, SAIF Corporation, Salem, argued the cause and filed the brief on the merits for respondents on review. On the response to the petition for review was Julene M. Quinn, SAIF Corporation, Salem.

James L. Edmunson and G. Duff Bloom, of Cole, Cary & Wing, P.C., Eugene, filed a brief on behalf of amici curiae Oregon Trial Lawyers Association and Oregon Workers' Compensation Attorneys.

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

CARSON, C.J.

The decision of the Court of Appeals is affirmed. 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.

145 Or App 294, 930 P2d 230 (1996).

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

CARSON, C.J.

In this workers' compensation case, we must interpret the wording of ORS 656.273(1) (1995), (1) which sets out the requirements for establishing a worsened condition for the purpose of filing an aggravation claim. The Court of Appeals concluded that, under that statute, a worker must prove a "pathological" worsening of the underlying condition itself, rather than only a worsening of symptoms. SAIF v. Walker, 145 Or App 294, 305, 930 P2d 230 (1996). For the reasons that follow, we conclude that ORS 656.273(1) (1995) requires proof of a worsened condition; proof of a worsening of symptoms arising from the underlying condition, by itself, is insufficient. We also conclude, however, that evidence of a symptomatic worsening may support a physician's conclusion that the underlying compensable condition itself has worsened. We affirm the decision of the Court of Appeals and remand the case to the Workers' Compensation Board (the Board) for further proceedings.

The relevant facts, taken from the Court of Appeals' opinion and the record, are as follows. Claimant, a timber faller, injured his lower back and left leg on the job in 1991. Claimant was diagnosed by Dr. Buza, his treating physician, as having an "L5-S1 herniated disc." Claimant filed a claim for compensation. His injury was deemed compensable, and SAIF Corporation (SAIF), his employer's insurer, paid the claim.

In May 1992, Buza declared claimant medically stationary and released him to regular work, beginning in June 1992, without restriction. At that time, claimant's work required heavy lifting of up to 100 pounds. Buza's closing report concluded that claimant's loss of function was minimal, although claimant continued to have some pain in his lower back and left leg. SAIF awarded claimant 12 percent permanent partial disability (PPD) and closed the claim.

Claimant requested reconsideration of the closure. In February 1993, he was examined by a medical arbiter, Dr. Burr. Burr concluded that claimant had a chronic and permanent medical condition arising from his accepted injury, and that he was capable of "medium work occasionally, light to medium work constantly, without repeated crouching, or bending." Based upon that report, SAIF increased claimant's PPD award to 16 percent.

Also in February 1993, claimant experienced increased pain while working and returned to Buza for treatment. At Buza's suggestion, claimant underwent an MRI scan, which revealed evidence of scar tissue but no residual or recurrent disc herniation. Buza referred claimant to a rehabilitation center to evaluate his physical capabilities. That evaluation concluded that claimant had "residual physical capacities in the light-medium work range, lifting and carrying 35 pounds occasionally with increased symptoms."

In May 1993, Burr re-examined claimant and concluded that, in addition to the herniated disc, claimant suffered from degenerative disc disease with continued symptomatic low back and left leg discomfort. Later, in response to a letter from claimant's lawyer, Buza concurred with Burr's diagnosis.

Claimant filed an aggravation claim under ORS 656.273 (1993). SAIF denied the claim in April 1993, concluding that claimant's underlying condition had not worsened since his earlier award. Claimant requested a hearing, which was held in March 1994. The administrative law judge (ALJ) (2) noted that, to prevail on his aggravation claim under ORS 656.273(1) (1993), "claimant must show that increased symptoms or worsening of the underlying condition resulted in diminished earning capacity." (Emphasis added.) The ALJ concluded that, because the evidence demonstrated that claimant's increased symptoms reflected more than a mere waxing and waning of the symptoms anticipated at the time of the PPD award, claimant had proved his aggravation claim. On June 1, 1995, the Board affirmed the ALJ's order.

Meanwhile, the 1995 Legislature enacted extensive amendments to the Workers' Compensation Law, including an amendment to ORS 656.273(1) that became effective on June 7, 1995. Or Laws 1995, ch 332,