Claimant, the personal representative of the deceased workers estate, seeks review of an order of the Workers’ Compensation Board upholding SAIFs denial of his claim for left L5-S1 radiculopathy. He contends that the boards order is not supported by substantial evidence or substantial reason, because the board failed, without reason, to defer to the opinion of the workers treating physician and did not adequately explain its conclusion that the treating physicians opinion had been based on an incomplete medical history and inaccurate information. In reviewing the boards order for substantial evidence and substantial reason, ORS 656.298(7); 183.482(8)(c), we agree with claimant that the board erred and reverse and remand.
This case presents a true battle of the experts as to whether Robert Culley, the deceased worker, had L5-S1 radiculopathy, and whether a work incident was a material cause of the alleged radiculopathy. Beginning in 2013, Culley suffered from preexisting bilateral sciatica and low back pain, with pain radiating down both legs to the knees. Culley saw Dr. Essex, his primary care physician, in July 2013 for symptoms of pain in both legs. Essex diagnosed bilateral sciatica. An MRI in 2013 showed “multilevel disc disease producing relatively minimal canal, but up to moderate neuroforaminal narrowing as described above.” There were disc bulges at L3-4 and L4-5 which minimally indented the ventral aspect of the thecal sac. There was nothing remarkable with respect to L5-S1.
Beginning in April 2014, Essex referred Culley to Dr. Zilkoski for treatment of constant pain in his left foot, which began after treatment for a left knee Bakers cyst. At that time, Culley also was experiencing low back pain, and he sought and obtained several months of chiropractic treatment for his foot and for low back pain, including mild to moderate pain in the sacrum region. A chiropractic exam revealed positive left leg straightening for low back pain as well as decreased sensation in the dermatomes of L5 and S2. The chiropractors primary diagnosis was “lumber spine sprain/strain.” Culleys foot symptoms gradually resolved.
In July 2015, Culley, who worked for employer Oregon Department of Justice as a detective, was injured at work when, as he walked in employers parking lot, he was hit by a bicycle. The bicycle hit the back of Culleys left side, and he fell to the pavement on his right leg and scraped his knees and elbows. Culley reported pain in his left ankle but initially he did not report any foot or back pain. SAIF, employers workers’ compensation insurer, accepted a claim for left knee strain, right knee abrasion, left knee abrasion, left elbow abrasion, and left foot comminuted fracture of the 3rd proximal phalanx.
In early September 2015, Culley saw Dr. Yao for his knees and reported that for about two weeks he had been experiencing sharp pain and numbness in both feet, primarily on the left. Yao noted that Culley had previously seen Zilkoski “for this,” a reference to Zilkoskis treatment of claimant for foot pain in 2014. Yao referred Culley to Dr. McCormick, an orthopedist, for his foot pain, who referred Culley for a nerve conduction study, which showed that Culleys left lateral plantar motor nerves “showed no response.” McCormick stated in the chart note of December 19, 2015, that diagnostic imaging confirmed a diagnosis of neuralgia and neuritis, likely due to Culleys work injury. In February 2016, Culley began to report pain and numbness in his left great toe.
In June 2016, Culley saw his primary care doctor, Essex, for left foot pain. Essex noted that he had previously treated Culley for very similar symptoms in 2013 not related to work.
In October 2016, on Yaos referral, Culley began seeing Dr. Herring, a neurologist, for his continued left foot pain and numbness. Culley reported to Herring that, about a year before, he had experienced shooting electrical pains into the left big toe, but that the symptoms had resolved on their own and were not present at the time of the work injury.
Herring examined Culley and noted tenderness in the left lateral lumbosacral region with positive straight leg raising on the left. Herring identified symptoms of radiculopathy, including decreased pinprick at the bottom of Culleys left foot and the left lateral foot, with decreased pinprick throughout, including the lower leg. Herring also noted weakness in Culleys left foot and leg. Herring concluded that, although Culley had not experienced low back pain at the time of the work injury, Culleys symptoms were the result of a radiculopathy originating at L5-S1, with the work injury as the most likely cause. Herring recommended further imaging.
In November 2016, Herrings associate Dr. Balm, a neurophysiologist, performed an electrodiagnostic study of Culleys left foot. Balm reported findings of “electrophysiologically mild, old, or chronic inactive left S1 radiculopathy.” He concluded that the study provided no electrophysiologic evidence for the presence of any ongoing active radiculopathy, nor for the presence of lumbosacral plexopathy, sciatica or other mononeuropathy affecting the left lower extremity.
Culley also had an MRI of the lumbar spine in November 2016. That imaging showed mild multilevel spondylosis and mild L2-3 spinal stenosis with moderate bilateral lateral recess narrowing and no foraminal narrowing. All levels had facet degenerative changes and some degree of central disc bulging with no compression of the nerve roots. During and after that MRI, claimant began to experience pain in his low back on the left and pain radiating into his leg.
Herring reported that, although the 2016 MRI did not show any definitive etiology for Culleys symptoms, he was still of the opinion that Culleys symptoms and findings were suggestive of radiculopathy/nerve root irritation. Because Culleys symptoms persisted and had begun to include back pain, Herring recommended more imaging and the opinion of a spine surgeon. An x-ray confirmed mild degenerative changes of the lumbar spine.
Herring continued to believe that the onset of Culleys increased radiculopathy symptoms was related to his work injury.
Dr. Rosenbaum examined Culley on SAIFs behalf in October 2017 and disagreed. Culley reported to Rosenbaum that he was experiencing left foot numbness and low back pain, which had developed after his work injury. Rosenbaums exam revealed “no true spasm” and moderate pain to palpation at L5-S1 and L4-5, moderate left trochanteric pain, bilateral sacroiliac pain and moderate left sciatic notch pain. Rosenbaum believed that the disc bulge findings on the November 2016 MRI and x-ray were consistent with the degenerative process with no acute findings. He said that Culleys various MRIs did not reveal a pathology that would indicate nerve root compression, displacement, or impingement at any level. He stated further that neither his chart notes nor those of any other examiner indicated lumbar radiculopathy in a specific dermatomal pattern as evidenced by motor, sensation, or reflex loss. He did not see clinical signs of radiculopathy and was of the opinion that Culleys lumbar condition was preexisting.
Herring rejected Rosenbaums opinion as having been based on an incomplete examination, or an inaccurate recording of that examination, and maintained that Culleys symptoms were radiculopathy “coincident with a work injury where he was struck by a heavy bicyclist with a mechanism of injury that would certainly be consistent with a subsequent lumbar spine injury.”
In October 2017, SAIF denied Culleys request to accept left L5-S1 lumbar radiculopathy as a new/omitted medical condition, and Culley filed a request for hearing.
Culley underwent an MRI in November 2017, which had findings similar to the November 2016 MRI. Findings from an MRI in November 2018 were also unchanged.
Dr. Button, an orthopedic surgeon, examined Culley at SAIFs request. He explained that radiculopathy means irritation of a cervical or lumbar nerve that produces pain, weakness, and/or numbness radiating down an extremity. Button found no complaints of low back pain or evidence of any pain, weakness, or numbness radiating down the extremity (except for the foot numbness) until Culley saw Herring 14 months after the injury. Button stated that, because there are many causes of numbness in an extremity and the cause is often unknown, to support a diagnosis of radiculopathy, one needed to have “either electrical support from a nerve test, a history or exam consistent with pain, weakness, or numbness radiating down a leg, or it should generally be in conjunction with nerve compression seen in the lumbar spine.” Button opined that, because MRI testing had not revealed nerve root compression, and Culley had none of the symptoms typically present with radiculopathy until 14 months after the injury, it was “medically highly unlikely” that Culley developed radiculopathy from the work incident. Button diagnosed lumbar spondylosis, preexisting, without nerve root compression to explain any motor or sensory changes in the lower extremities. Button opined that Culleys symptoms were related to preexisting degenerative disease.
Herring disagreed with Button. Herring noted that while it was true there was no MRI evidence of nerve root compression, compression was not the only source of radiculopathy. He explained that, in the absence of obvious compression, sometimes a tear in the annulus fibrosis will release disc fluid with an inflammatory component that will provoke an auto-immune reaction resulting in radiculopathy of the nerve root, and that such tears do not necessarily show up on MRIs. In Culleys case, he believed that the bicycle incident was of sufficient force to “probably cause a small rent in his annulus which leaked irritants and caused chronic inflammatory changes around the S1 nerve root.” Herring opined that the work injury was the major contributing cause of Culleys radiculopathy condition. He based his opinion on the mechanism of injury (a “forceful event”), Culleys consistent symptoms and credible examinations, the transient relief of symptoms that Culley experienced after receiving anti-inflammatory steroid injections, and Balms abnormal EMG findings that showed objective evidence of S1 radiculopathy. Although Culley had had prior left toe issues, Herring noted that the problem had resolved and that Culley was asymptomatic at the time of the work injury. In light of Culleys symptoms of left foot weakness, numbness and pain, a positive straight leg test on the left, and the EMG showing S1 radiculopathy, Herring concluded that Culley had a pattern of nerve root symptoms and findings consistent with nerve root irritation, and that, to a reasonable probability, Culleys complaints were consistent with a lumbar radiculopathy related to the work injury.
An administrative law judge (ALJ) upheld SAIFs denial of the claim. The ALJ directed his analysis to the proof of causation, reasoning that claimant had failed to establish that work was a material contributing cause of the claimed radiculopathy. The ALJ explained that Herring had not addressed claimants prior low back and sciatic symptoms. The board, in adopting the ALJs order with supplementation, reasoned that the deference commonly given to a treating physicians diagnosis was not applicable in this case, in view of the fact that Herring did not begin treating Culley until 14 months after the injury. The board discounted Herrings opinion for several additional reasons.
For example, the board reasoned that the record did not show that Herring was aware that Culley had suffered and been treated for similar sciatic symptoms in 2013, including left foot pain; thus, the board concluded that Herrings opinion was based on an incomplete medical history. The board further reasoned that Herring had mistakenly relied on a chart note referencing treatment of a complaint about foot numbness two weeks after the injury when, in fact, the treatment had occurred before the injury; thus, the board concluded that Herrings opinion was inaccurate. Finally, the board discounted Herrings opinion as unpersuasive, reasoning that Herring had not sufficiently responded to Buttons contrary opinion and had not adequately explained “his conclusion by describing how plaintiffs signs and symptoms on examination close to the time of the injury” “fit within the dermatomal pattern for the left L5-S1 radiculopathy condition.” Having discounted Herrings opinion, the board concluded that Culley had not met his burden of proof to establish that the symptoms of radiculopathy are work-related.
On judicial review, claimant contends that the board erred in rejecting Herrings opinion. As Culleys treating physician, claimant contends, Herrings opinion was entitled to deference in his evaluation of Culleys current symptoms, whether or not he began treating Culley immediately after the injury. Cf. Dillon v. Whirlpool Corp., 172 Or. App. 484, 489, 19 P.3d 951 (2001) (“The Board properly may or may not give greater weight to the opinion of the treating physician, depending on the record in each case.”) Claimant further challenges the boards conclusion that the record did not show that Herring had a complete medical record, pointing out that Herring had for his review Culleys full medical history, including records from his primary care physician, as well as all of the subsequent medical records. Finally, claimant challenges the boards conclusion that Herrings causation opinion was based on inaccurate information, asserting that the boards conclusion is a misreading of the medical record. Claimant asserts that, as a specialist in the field of neurology who had treated Culley for his symptoms for two years, Herring was in the best position to evaluate the cause of Culleys symptoms. See Weiland v. SAIF, 64 Or. App. 810, 814, 669 P.2d 1163 (1983) (“When the medical evidence is divided, we have tended to give greater weight to the conclusions of a claimants treating physician, absent persuasive reasons not to do so.”).
We have reviewed the record and agree with claimant that the board misread it with regard to Herrings reference to Yaos report of symptoms two weeks after the injury. The record requires the finding that Herrings opinion was based on accurate information and that Culley did complain of foot pain to Yao two weeks after the injury.
We also agree with claimant that the board erred in determining that Herring had an incomplete record because he did not refer in his reports to Culleys history of and treatment for sciatic in 2013 and may not have been aware of Culleys prior history of sciatica. The record requires a finding that Herring had for his review all of Culleys medical records and was aware of his history.
Finally, we agree with claimants contention that the board erred in discounting Herrings opinion because he did not adequately explain his disagreement with Buttons view that Culley had not experienced symptoms of radiculopathy. Herrings reports do explain his reasoning that, despite the absence of back symptoms immediately following the injury, Culleys history and diagnostics, which included a positive leg straightening test, decreased pinprick in the left foot and leg, indicative of sensory loss, and an EMG showing S1 radiculopathy, were indicative of L5-S1 radiculopathy.
SAIF argues that whatever the boards rationale in rejecting Herrings opinion relating to the existence of L5-S1 radiculopathy, the record supports the boards determination as to a lack of causation. SAIF is correct that the medical record includes evidence that, before the 2015 injury, in 2014, Culley was suffering from low back symptoms on the left as well as symptoms that Herring identified as radiculopathy, including decreased sensation along the L5 dermatome. The record also includes medical evidence from Rosenbaum and Button that Culleys symptom complex after the work injury did not constitute radiculopathy. For those contradictory reasons, SAIF argues, this court should conclude that the boards order upholding SAIFs denial of the claim is supported by substantial evidence.
As to the issue of deference to the opinion of the treating physician, SAIF points out correctly that it is not a rule of law; rather, it is a method of factual analysis that the board is free to apply in its judgment. In Dillon, we explained that, in view of the fact that the court no longer reviews the boards orders de novo, but for substantial evidence, the question of deference to the treating physician is for the board, as a factual analytical construct. We must affirm the boards deference determination if it is supported by substantial evidence. Id. at 488, 19 P.3d 951.
In Dillon, 172 Or. App. at 489, 19 P.3d 951, we went on to explain the nature of substantial evidence review, quoting from this courts watershed opinion in Armstrong v. Asten-Hill Co., 90 Or. App. 200, 752 P.2d 312 (1988). As relevant here, the takeaway from Armstrong is that, to be supported by substantial evidence, the boards order must indicate what findings the board makes and how those findings led the board to its ultimate conclusion—that is, it must be supported by substantial reason. Armstrong, 90 Or. App. at 206, 752 P.2d 312 (“The requirement of findings leads to a requirement that the agency state its reasoning.”); see Guild v. SAIF, 291 Or. App. 793, 800, 422 P.3d 376 (2018) (“The board can reject an experts medical opinion as unpersuasive, but it must explain its reasons for doing so.”); see also Minor v. SAIF, 290 Or. App. 537, 545, 415 P.3d 1107 (2018) (“In reviewing for substantial evidence, we must also determine whether the boards analysis comports with substantial reason. To satisfy that requirement, the board must ‘provide a rational explanation of how its factual findings lead to the legal conclusions on which the order is based.’ ”) (Quoting Arms v. SAIF, 268 Or. App. 761, 767, 343 P.3d 659 (2015) (citing Drew v. PSRB, 322 Or. 491, 500, 909 P.2d 1211 (1996))).
As we pointed out in Guild, this court does not “reweigh the evidence or ‘substitute our judgment for that of the board as to any issue of fact supported by substantial evidence.’ ” 291 Or. App. at 796, 422 P.3d 376 (quoting Elsea v. Liberty Mutual Ins., 277 Or. App. 475, 483, 371 P.3d 1279 (2016)); ORS 183.482(7). Nevertheless, the factfinder must meticulously review the entire record to correctly decide a case. If the board makes a finding and conclusion based on one doctors opinion, then the finding and conclusion must be based on an analysis of the entirety of the information provided by that doctor. Guild, 291 Or. App. at 798-800, 422 P.3d 376. If it is not, then the order lacks substantial evidence and substantial reason. See Garcia v. Boise Cascade Corp., 309 Or. 292, 296, 787 P.2d 884 (1990) (“An assertion of a finding of fact as part of an explanation for disregarding evidence is subject to attack if that fact relied upon is not, itself, supported by substantial evidence.”). That requirement makes a difference in this case: The boards findings that are not based on substantial evidence led it to misapply the factual analytical model concerning deference to Herring, the treating physician.
In Garcia, the court said:
“In cases where evidence is rejected by the [board], and such action purports to be based on facts, it is appropriate for the reviewing court to examine whether the [boards] decision to disregard or discount the evidence in the record is supported by substantial evidence. Put another way: An assertion of a finding of fact as part of an explanation for disregarding evidence is subject to attack if that fact relied upon is not, itself, supported by substantial evidence.”
309 Or. at 296, 787 P.2d 884. Under our standard of review, it is not appropriate for us to correct the boards findings, but it is incumbent upon us to point out errors in the boards analysis that could have affected the outcome of the case. Guild, 291 Or. App. at 796, 422 P.3d 376. As we have determined, the evidence in the record does not support the boards several rationales for discounting Herrings opinion. Thus, we conclude that the boards findings, including its rejection of the treating physicians opinion, are not supported by substantial evidence or substantial reason. In light of that conclusion, we reverse and remand the boards order for reconsideration under the correct standard relating to consideration of the treating physicians opinion.
Reversed and remanded.
EGAN, J.