HADLOCK, J.
We frame our discussion, as did the board, in terms of the "combined condition" analysis. A combined condition arises when "an otherwise compensable injury"—that is, an accidental injury "arising out of and in the course of employment," ORS 656.005(7)(a)—"combines * * * with a preexisting condition to cause or prolong disability or a need for treatment." ORS 656.005(7)(a)(B). Such a combined condition is compensable only "to the extent that the otherwise compensable injury is the major contributing cause" of the combined condition's disability or need for treatment. Id. See Vigor Industrial, LLC v. Ayres, 257 Or.App. 795, 802, 310 P.3d 674 (2013), rev. den., 355 Or. 142, 326 P.3d 1207 (2014) (explaining ORS 656.005(7)(a)(B) to have that dual significance). Thus, if a preexisting condition is the major contributing cause of a combined condition, the combined condition is not compensable.
The underlying facts are not in dispute. In 1953, when claimant was five years old, he had a left inguinal hernia repaired. Claimant had a second inguinal hernia repaired in 1995, that time on the right side. That hernia was not work related. The hernia was "indirect," meaning that it protruded through the internal inguinal ring, a natural opening in the abdominal wall. It was repaired through an "open surgery" procedure in which the surgeon attached reinforcing mesh to the outside of the abdominal wall. After that surgery, claimant had no further symptoms, and the repair site was not monitored by any doctor.
While he was working for employer in January 2011, claimant felt a sharp pain in his right groin as he lifted a 40- to 50-pound box. Claimant was referred to a surgeon,
Claimant made a workers' compensation claim for "right groin condition." Employer requested an independent medical examination, which was performed by Dr. Bernardo. Bernardo diagnosed a "recurrent right inguinal hernia" and an "asymptomatic, previously unrecognized left inguinal hernia." He also discovered an asymptomatic umbilical hernia of which claimant had not been aware. Bernardo opined that the left inguinal hernia and the umbilical hernia were not work related. In the report that he wrote after the examination, Bernardo stated that claimant's right inguinal hernia "clearly has been present for some period of time." In his view, it was "medically unlikely" that the work incident, which he described as a "modest lifting event," caused the hernia. He added, "It is much more likely that a small recurrent hernia has been present for some period of time and that hernia has enlarged steadily in the years following the original repair. The examinee's work event then enlarged the hernia, crimped it, or otherwise brought it to his attention." Bernardo noted that up to 10 percent of inguinal hernia repairs fail over time. He opined that claimant's "recurrence is an outgrowth of whatever inadequacies may have existed at the original repair. It is entirely likely that some level of recurrence has been present for months or even years." Ultimately, Bernardo concluded that claimant's right hernia
Bernardo added that claimant's disability and need for treatment was "primarily related to the preexisting hernia and the failure of its repair."
Employer denied claimant's claim, asserting that his condition was not worsened by and did not arise out of and in the course of his employment.
Fontus performed surgery on claimant about a month after Bernardo's examination. Fontus did not perform an open surgery like the one that had been done in 1995, but instead approached the inguinal region from inside claimant's abdomen with a laparoscope inserted near his navel. Because of that, Fontus could not see the original repair. He repaired both inguinal hernias with mesh that he attached to the inside of the abdominal wall. He also repaired the umbilical hernia.
Claimant requested a hearing on employer's denial of his claim before the Workers' Compensation Board. He also requested another medical examination, which was performed by Dr. Salomon in July 2011. Salomon examined claimant physically and reviewed medical records including Bernardo's report and Fontus's post-surgery report. Salomon agreed with Bernardo that the right inguinal hernia had likely been present before the lifting incident at work and that the work incident had exacerbated it. He also agreed that the recurrence was "due to a failure of the repair" that was made in 1995. However, he disagreed with Bernardo's assessment that the 2011 work incident had been minor. He concluded that the "lifting incident was most likely the cause that exacerbated the already present right inguinal hernia."
Employer's attorney obtained a concurrence letter from Bernardo in which he stated three reasons that he did not believe that the work incident was the major contributing cause of claimant's disability and need for treatment. The first reason was the existence of the 1995 hernia repair. The second was the relative insignificance of the January 2011 lifting event at work. The third was the presence of the two other hernias that Fontus repaired. According to Bernardo, "the development of two unrelated asymptomatic hernias, in addition to the right inguinal hernia, confirms that [claimant] also
Before the hearing on the denial of claimant's claim, Bernardo gave a deposition, in which the following exchange occurred between Bernardo and employer's attorney:
A hearing was held before an administrative law judge (ALJ). At the hearing, employer conceded that claimant's work incident was an otherwise compensable injury, and it amended its denial to assert that the work injury had combined with a preexisting condition and that the preexisting condition was the major contributing cause of the combined condition.
After the hearing, the ALJ issued an order affirming the denial. In that order, the ALJ noted that Bernardo had identified the previous right inguinal hernia repair as a preexisting condition and had concluded that "claimant's right inguinal hernia represented a recurrence of the previously repaired inguinal hernia." The ALJ concluded that "the prior hernia and repair was a condition that existed and was treated prior to the 2011 work incident" and thus constituted a legally cognizable preexisting condition. In light of that conclusion, she stated that "claimant's other contentions regarding the lack of a legally-cognizable preexisting condition need not be addressed." The ALJ then concluded that Bernardo's opinion established that the work incident was not the major contributing cause of claimant's need for treatment of the combined condition:
(Record citations omitted.) The ALJ concluded that, because Bernardo "weighed all the relevant contributing factors, his opinion is persuasive."
Claimant sought review by the Workers' Compensation Board, arguing that he did not have a combined condition and that the weakness of his abdominal wall tissues "was a mere susceptibility which should not have been weighed in determining major causation." Claimant noted that Bernardo himself had described claimant's abdominal wall weakness as "predisposing him to develop hernias."
The board adopted and affirmed the ALJ's order with supplementation that addressed claimant's contention that his abdominal wall weakness merely made him more susceptible to injury. The board acknowledged that Bernardo had described claimant's abdominal wall weakness as "predisposing him to develop hernias," but it observed that "Bernardo also stated that the right inguinal hernia developed `due to weakening of the tissue.' Such an explanation indicates that claimant's abdominal wall weakness caused the right inguinal hernia, and was not merely a predisposition or susceptibility." (Record citation omitted; emphases in original.) The board went on to state that Bernardo's opinion indicated that "the hernias that had been treated in 1953 and 1995 had also been caused by claimant's abdominal wall weakness." It concluded that, because that weakness "had been treated before the 2011 work injury," it satisfied the requisites of a preexisting condition. Accordingly, the board ruled that "claimant's abdominal wall weakness was a `preexisting condition,' and, thus, claimant's right inguinal hernia was a `combined condition.'"
On judicial review, claimant argues that the board's order is not supported by substantial evidence or substantial reason. He first challenges the board's determination that his abdominal wall weakness was a preexisting condition that could be taken into account in determining whether claimant's otherwise compensable injury was the major contributing cause of any combined condition from which he suffered.
Employer responds that the board's resolution of the case did not depend on the characterization of the abdominal wall weakness as a preexisting condition. According to employer, although Bernardo "discussed the contribution that claimant's abdominal wall weakness made to the occurrence of claimant's multiple hernias on several occasions, * * * he did not include the weakness as an independent contributor when he offered his ultimate opinion concerning major causation." Employer cites Bernardo's statement that "[t]he presence of that previous hernia and its failure over time is a significant preexisting condition and in toto
We begin with claimant's contention that his abdominal wall weakness should not have been considered a pre-existing condition. In an initial injury claim, the claimant bears the burden of proving that an injury is compensable. ORS 656.266(1). Once the claimant establishes a compensable injury, the burden shifts to the employer to establish that "the otherwise compensable injury is not, or is no longer, the major contributing cause" of the claimant's disability or need for treatment. ORS 656.266(2)(a). Here, it is undisputed that claimant suffered a compensable injury. Thus, employer had the burden to show that claimant had a preexisting condition and that the preexisting condition—not claimant's otherwise compensable injury—was the major contributing cause of claimant's disability and need for treatment.
Whether claimant's abdominal wall weakness should have been considered a preexisting condition turns on the meaning of "susceptible" in ORS 656.005(24)(c). Again, the statute provides, "For the purposes of industrial injury claims, a condition does not contribute to disability or need for treatment if the condition merely renders the worker more susceptible to the injury." The term "susceptible" is not statutorily defined. A dictionary definition, however, provides a helpful place to start. As pertinent here, Webster's defines "susceptible" to mean "of such a nature, character, or constitution as to admit or permit: capable of submitting successfully to an action, process, or operation." Webster's Third New Int'l Dictionary 2303 (unabridged ed. 2002).
The legislative history of ORS 656.005(24)(c) sheds additional light on the meaning of the term "susceptible." That statute was enacted in 2001 as part of Senate Bill (SB) 485. See Or. Laws 2001, ch. 865, § 1. Previously, "preexisting condition" was defined to include any condition that "predisposes a worker to disability or need for treatment * * *." ORS 656.005(24) (1999). One of the authors of SB 485, Jerry Keene, testified that the intent was to carve out of the "definition of `preexisting condition' those conditions which do not actively contribute to the disability or need for treatment * * *." Tape Recording, Senate Committee on Business, Labor, and Economic Development, SB 485, Mar. 14, 2001, Tape 49, Side A (statement of Jerry Keene). He stated that "the distinction turns on the difference between active and passive contributions." Id. Keene explained that "traits, characteristics, [and] asymptomatic conditions such as age, gender, weight, history of smoking, alcohol use, abuse, family history, [and] some congenital factors * * * don't actively contribute" to disability or need for treatment and would not be deemed causes under the new law. Id. He added that conditions that would continue
Thus, the text, context, and legislative history of ORS 656.005(24)(c) show that a condition merely renders a worker more susceptible to injury if the condition increases the likelihood that the affected body part will be injured by some other action or process but does not actively contribute to damaging the body part. See Murdoch v. SAIF, 223 Or.App. 144, 149-50, 194 P.3d 854 (2008), rev. den., 346 Or. 361, 211 P.3d 930 (2009) (because the claimant's diabetes made him unable to "mount as strong of a response" to trauma caused by other forces, and did not itself cause that trauma, it had merely rendered the claimant susceptible to an infection of his toe, and was not a contributing cause of the need for amputation of that digit).
With that understanding of the term "susceptible" in mind, we turn back to the board's order. In concluding that claimant's abdominal wall weakness was a preexisting condition rather than a susceptibility, the board reasoned that Bernardo's statement that claimant's right inguinal hernia had enlarged "due to weakening of the tissue" indicated that the weakness had "caused" the hernia rather than merely rendering claimant more susceptible to hernias. The record does not support that determination. The words "due to" could refer to either an active or a passive contribution to disability or need for treatment. However, the context in which Bernardo used the words does not support a finding that the abdominal wall weakness actively contributed to claimant's condition. In his deposition, Bernardo explained that hernias "develop at known sites of weakness that everyone has. They develop through a combination of those weaknesses with aging of tissues and the stresses and strains that everyone goes through on a day-to-day basis." Bernardo also noted that claimant's abdominal wall was likely not as strong as it is in other people. Moreover, Bernardo stated in his concurrence report that the weakening of claimant's abdominal wall predisposed him to develop hernias. A reasonable person, viewing the record as a whole, could find only that Bernardo meant that the abdominal wall weakness was a passive contributor that merely allowed the hernia to enlarge, while the "stresses and strains" of everyday life actively caused the hernia to enlarge. Nothing that Bernardo said would support a finding that claimant's abdominal wall weakness was an active, ongoing contributor to damaging the area through which the hernia protruded. It follows that claimant's abdominal wall weakness merely rendered claimant more susceptible to injury, without itself "contribut[ing] to disability or need for treatment." Accordingly, the abdominal wall weakness was not a preexisting condition within the meaning of ORS 656.005(24). The board erred in finding otherwise.
As noted, employer argues that the board's resolution of the case did not rely on the characterization of the abdominal wall weakness as a preexisting condition. We disagree. In its order, the board expressly stated that "Bernardo's opinion supports a conclusion that claimant's abdominal wall weakness was a `preexisting condition,' and, thus, claimant's right inguinal hernia was a `combined condition.'" Moreover, given the board's conclusion that claimant had a statutory preexisting condition and, thus, a combined condition, the resolution of the case turned on whether claimant's work injury was the major contributing cause of his disability and need for treatment. Determining the major contributing cause "involves evaluating the relative contribution of different causes of an injury or disease and deciding which is the primary cause." Dietz v. Ramuda, 130 Or.App. 397, 401, 882 P.2d 618 (1994), rev. dismissed, 321 Or. 416, 898 P.2d 768 (1995) (emphasis in original). The board did not expressly analyze that issue in its order, but it adopted the ALJ's opinion and order. In her analysis of Bernardo's explanation of his opinion as to the major contributing cause, the ALJ stated:
The ALJ thus acknowledged that the abdominal wall weakness was a factor in Bernardo's opinion. Accordingly, we cannot say that findings about claimant's abdominal wall weakness did not influence the board's resolution of the case.
In light of the board's erroneous determination that claimant's abdominal wall weakness was a preexisting condition, we must remand to the board for reconsideration. Because the remaining issues that claimant raises on judicial review might not arise again on remand, we do not address them.
Reversed and remanded.