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In re Compensation of Albert

Court of Appeals of Oregon

January 23, 2014

In the Matter of the Compensation of Tyrel Albert, Claimant.
v.
TYREL ALBERT, Respondent CENTRAL OREGON INTERGOVERNMENTAL COUNCIL-COIC, Petitioner,

Submitted: August 29, 2013.

Workers' Compensation Board. 1006937, 1006819.

David L. Johnstone and MacColl Busch Sato, P.C., filed the briefs for petitioner.

Philip H. Garrow and Edward J. Harri, filed the brief for respondent.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.

OPINION

[260 Or.App. 641] HADLOCK, J.

Under the Oregon Workers' Compensation Law, a worker who suffers permanent disabilities in association with a compensable work-related injury will be entitled to a permanent partial disability (PPD) benefit if certain requirements are met. If the worker has returned to regular work at the job held at the time of injury or has been released to that work, then " the award shall be for impairment only," which is defined as " the loss of use or function of a body part or system * * * expressed as a percentage of the whole person." ORS 656.214(1)(a), (2)(a). Conversely, if the worker has not returned to regular work and has not been released to that work, then " the award shall be for impairment

Page 615

and work disability." ORS 656.214(2)(b). " 'Work disability' means impairment modified by age, education and adaptability to perform a given job." ORS 656.214(1)(e).

This case involves a dispute over whether claimant had been released to regular work at the time his PPD benefit was determined and, therefore, whether he was entitled to work disability as part of that benefit. The Workers' Compensation Board (1) ruled that claimant was entitled to work disability and (2) penalized employer under ORS 656.268(5)(e) in association with its failure to include work disability in claimant's PPD benefit. Employer seeks judicial review, challenging both aspects of the board's order. As explained below, we conclude that the board erred in analyzing claimant's entitlement to work disability, and we remand the case to the board for reconsideration of that point. In light of that remand, we need not address employer's argument that the board erred by penalizing employer for not having included work disability in claimant's PPD award.[1]

The historical facts are not contested in any respect that is pertinent to our analysis. Claimant worked for employer as a " crew member" whose duties included clearing [260 Or.App. 642] and building trails, building fences, and piling brush. In August 2009, claimant sustained a compensable injury to his knee. Employer accepted a claim for " dislocation, ACL tear, small tear medial meniscus, PCL tear, and Grade II strain, MCL." Claimant had two surgeries, the second of which was performed by Dr. Nonweiler in September 2009. He later participated in extensive physical therapy.

In November 2009, Nonweiler released claimant to a modified duty job, working four hours per day. The next month, Nonweiler approved claimant to perform sedentary work eight hours per day. That work was defined to include no lifting or carrying of objects weighing more than 10 pounds; claimant was to perform even lighter lifting or carrying only occasionally.

Nonweiler concluded in March 2010 that claimant was medically stationary and referred him for an evaluation of what Nonweiler projected would be " permanent impairment with respect to the knee." Later that month, an occupational therapist performed a " Physical Capacities Evaluation" (PCE) of claimant that was designed to " assess residual functional capacities since injury, specifically as this relates to return-to-work activities." After performing various tests, the therapist concluded that claimant could work " within the Light/Medium work range as defined by the U.S. Department of Labor." Among other details, the PCE report specified that claimant could frequently lift objects weighing up to 20 pounds and could occasionally lift and carry heavier objects weighing up to 45 pounds. The therapist specifically recommended against claimant lifting or carrying anything weighing more than 45 pounds, although she anticipated that he would be able to lift and carry up to 50 pounds within six months. The therapist also recommended some restrictions on the amount of time that claimant would spend standing and walking, noted that he could not squat using his right knee unless he was wearing a brace, and reported that he " was unable to demonstrate the ability to kneel and fully weight bear on the right knee." The therapist recommended that claimant " function within the parameters" described in the PCE report if he returned to work.

[260 Or.App. 643] In April 2010, Nonweiler sent employer's insurer a form indicating that he concurred with every aspect of the PCE. Two months later, however, Nonweiler signed a " Regular Duty Job Analysis" form that had been prepared by employer. According to the instructions printed on the form, it was " intended to detail the ...


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