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In re Compensation of Schleiss

Supreme Court of Oregon

December 27, 2013

In the Matter of the Compensation of Jon M. Schleiss, Claimant.

Argued and submitted September 16, 2013

On review from the Court of Appeals WCB 0905174; CA A146996. [*]

Donald M. Hooton, Hooton Wold & Okrent, LLP, Beaverton, argued the cause and filed the brief for petitioner on review.

Julie Masters, SAIF Corporation, Salem, argued the cause and filed the brief for respondents on review SAIF Corporation and Nuent Masonry Inc.

Michael A. Casper, Deputy Solicitor General, Salem, argued the cause for Intervenor Department of Consumer and Business Services. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Julene M. Quinn, Corvallis, and James S. Coon, Swanson Thomas Coon & Newton, Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer and Baldwin, Justices. [**]


Our review of an order of the Workers' Compensation Board (the board) that made a permanent partial disability (PPD) award to claimant requires us to determine whether OAR 436-035-0013 (2009), an administrative rule adopted by the Director of the Department of Consumer and Business Services (DCBS), is inconsistent with the statutes that the Director intended to implement. We review to determine whether the board has erroneously interpreted a provision of law. ORS 183.482(8)(a)(B). For the reasons that follow, we reverse the decision of the Court of Appeals, and we remand this case to the board for further proceedings.

We take the material facts, in condensed form, from the Court of Appeals' opinion. Schleiss v. SAIF Corp., 250 Or.App. 458, 459, 281 P.3d 626 (2012). Claimant compensably injured his low back while at work in April 2008, and SAIF accepted his ensuing claim for a lumbar strain. Claimant was taken off work after his injury and, during the next several months, received an extensive course of chiropractic care before being referred to Dr. Jeffrey Gerry. After examining claimant in late 2008, Gerry opined that claimant had "some symptoms suggestive of lumbar radiculopathy, " and he referred claimant for a lumbar MRI. In February 2009, Gerry reviewed the results of claimant's MRI and reported that "[t]here were no significant abnormalities noted." Gerry declared claimant medically stationary and released him to regular work without restriction. Based on Gerry's findings, SAIF issued a notice of closure that did not award PPD benefits to claimant.

Claimant requested reconsideration and the appointment of a medical arbiter, based on his disagreement "with the impairment findings used to determine and rate permanent disability." During a medical arbiter examination in July 2009, claimant reported that he had attempted to return to regular work in early March, but his back pain had recurred. Claimant also reported that he had been employed since that March attempt, but not in his regular work. After examining claimant, the arbiter opined that claimant "has some limitation in his ability to use the spinal area. I would classify it as moderate. He cannot lift over 50 pounds and needs to avoid recurrent bending and twisting." The arbiter also stated that he "would attribute [claimant's impairment] findings mainly to the off the job factor":

"This is based on the fact that his MRI demonstrates only mild degenerative changes at L1-2 and L4-5. He however does smoke and this contributes to an acceleration of the aging process. Based on the evaluation I would rate 33% of the problem secondary to his on-the-job and 67% secondary to his pre-existing mild DJD and long history of smoking."

Relying on the medical arbiter's impairment findings, the Appellate Review Unit (ARU) of DCBS issued an order on reconsideration that awarded claimant PPD based on five percent whole-person impairment and no work disability. Among other things, the order on reconsideration concluded that, because only the portion of impairment findings that were "due to" claimant's compensable injury receive a value under OAR 436-035-0013, his "value for loss of range of motion, "13.8 percent, was apportioned at 33 percent, for an impairment value of 4.55 percent.[1]

In reaching that conclusion, the ARU relied on OAR 436-035-0013(1), which provides:

"The physician describes the current total overall findings of impairment, then describes those findings that are due to the compensable condition. In cases where a physician determines a specific finding (e.g. range of motion, strength, instability, etc.) is partially attributable to the accepted condition, only the portion of those impairment findings that is due to the compensable condition receives a value. When apportioning impairment findings, the physician must identify any applicable superimposed or unrelated conditions."

That rule is intended to implement the Director's authority under two statutes. The first statute, ORS 656.726(4)(f)(A), calls for the director to establish PPD standards and criteria based on "the loss of use or function of a body part * * * due to the compensable industrial injury." The second statute, ORS 656.214, which authorizes awards of PPD, provides, in part, that,

"(1)(a) 'Impairment' means the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease determined in accordance with the standards provided under ORS 656.726, expressed as a percentage of the whole person."

After the ARU issued its order on reconsideration, claimant requested a hearing before an administrative law judge (ALJ). Among other arguments, claimant contended that the workers' compensation statutes provide that "apportionment is appropriate only in the context of an accepted combined condition, " and that, because no qualifying combined condition existed in this case, claimant was "entitled to an award for all of his impairment as long as it was caused in part by his accepted condition."

The ALJ affirmed the reconsideration order, and the board affirmed the ALJ's order. On judicial review before the Court of Appeals, claimant renewed his arguments before the board; in particular, claimant asserted that OAR 436-035-0013(1) is inconsistent with both the applicable statutes and this court's decision in Barrett v. D & H Drywall, 300 Or 325, 709 P.2d 1083 (1985), on recons 300 Or 553, 715 P.2d 90 (1986).

The Court of Appeals affirmed. As pertinent here, the court reasoned that,

"[b]oth ORS 656.214(1)(a) and ORS 656.726(4)(f)(A) contemplate that PPD impairment benefits will be awarded only for impairment that is 'due to' the compensable condition. OAR 436-035-0013 implements those statutes by describing the way in which overall findings of impairment will be apportioned between those '[impairment] findings that are due to the compensable condition' and those that are not. Put another way, the rule sets out the specific method for implementing the legislature's express intent that workers receive PPD benefits only for impairment 'due to' compensable conditions.
"* * * * *
"[W]here a physician determines that an injured worker's impairment is due partly to a previously undiagnosed noncompensable condition -- and the physician does not find that the noncompensable condition was worsened or rendered symptomatic by the compensable injury -- apportionment is appropriate. OAR 436-035-0013 (2009) is consistent with those principles, it does not conflict with Barrett I or Barrett II and the DCBS director did not lack statutory authority to adopt that rule."

Schleiss, 250 Or.App. at 464-66.

The statutory phrase "due to" is an inexact term -- that is, neither a term so precise that no interpretation is necessary nor a term (such as "good cause") indicating that the legislature intended to delegate the determination of its meaning to an agency charged with implementing the statute. See Springfield Education Assn. v. School Dist., 290 Or 217, 223, 621 P.2d 547 (1980) (summarizing the categorization of statutory terms). Accordingly, the Director's construction of the statutory term in his rule is not entitled to deference on review. Id. at 224, 229. In effect, then, the ultimate issue before us is whether the Court of Appeals' construction of ORS 656.214 is correct. If it is, then the Director's rule is consistent with the meaning of the statute; if not, then the rule is inconsistent with the statute, and the board's order in this case is erroneous. In conducting that inquiry, we employ our method of statutory construction set out in State v. Gaines, 346 Or 160, 171-72, 206 P.3d 1042 (2009), to ascertain the legislature's intent. See also State v. Klein, 352 Or 302, 309, 283 P.3d 350 (2012) (when construing statutes, court reviews statutory text and context, including related statutes).

ORS 656.214 provides, ...

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