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In re Compensation of Spurger

Court of Appeals of Oregon

October 8, 2014

In the Matter of the Compensation of Angelica M. Spurger, Claimant. ANGELICA M. SPURGER, Petitioner,

Argued and Submitted: February 11, 2014.

Workers' Compensation Board. 1006324.

Donald M. Hooton argued the cause and filed the briefs for petitioner.

David L. Runner argued the cause and filed the brief for respondents.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.


Page 884

[266 Or.App. 184] EGAN, J.

Claimant seeks judicial review of an order of the Workers' Compensation Board (the board) that denied her compensation for what she maintained was a " chronic condition impairment" of her left hip under OAR 436-035-0019. That order concluded that claimant had failed to demonstrate that she was " significantly limited in the repetitive use" of her hip such as would entitle her to compensation under that rule. Claimant contends that the board erred in failing to either identify or apply a proper interpretation of the term " significantly limited." Because we conclude that the board's order is not supported by substantial reason, we reverse and remand.

The facts are undisputed. After claimant was injured at work, SAIF, her employer's workers' compensation insurer, accepted her claim for--among other things-- a left-hip strain. One of the issues raised during the process of closing her claim was whether claimant was entitled to additional compensation for a " chronic condition impairment" in her left hip. That determination is controlled by OAR 436-035-0019, which provides: " (1) A worker is entitled to a 5% chronic condition impairment value for each applicable body part, when a preponderance of medical opinion establishes that, due to a chronic and permanent medical condition, the worker is significantly limited in the repetitive use of [a list of body parts that includes the hip]." [1]

As part of the claim-closure process, Dr. Franklin Wong examined claimant. SAIF sent Wong a check-the-box letter, asking him various questions about claimant's medical condition. One of those questions asked: " Which best describes the worker's limitation in repetitive use of the left hip for the accepted condition(s)?" Underneath that question were three boxes, labeled " [n]o limitation," " [s]ome limitation," and " [s]ignificant limitation." Wong checked the " [s]ome limitation" box.

Claimant's attorney sent Wong a " concurrence letter," asking Wong to memorialize his understanding of a [266 Or.App. 185] previous conversation of theirs concerning claimant's left-hip condition. Claimant's attorney asked Wong whether he agreed with the following characterization of their discussion:

" I asked you specifically what limitation you would anticipate. You indicated that [ claimant ] would have difficulty with repetitive squatting, walking long distances and static standing for long periods of time. You indicated that, as a physician, the term 'significant' means that there is a major loss of function as a result of limitation. Because SAIF Corporation only gave you three choices--no limitation, some limitation or significant limitation--you selected some limitation. We discussed the fact that neither the [Workers' Compensation] Division nor the Board has provided any guidance with what the word 'significant' actually means, but that the dictionary definition of the word 'significant' merely means important, weighty, or notable. You indicated that it would be beneficial if someone would provide more

Page 885

guidance with how the word 'significant' was supposed to be interpreted."

(Emphasis added.) Wong indicated that the statement accurately reflected both their conversation and his " opinion to a reasonable medical probability."

Claimant's attorney also sent a letter to claimant's attending physician, Dr. Hai Tran. That letter first asked Tran whether he agreed with the " findings, opinion, and diagnosis(es)" that Wong had expressed in the concurrence letter; Tran responded that he did. It then asked, " Assuming the definition of 'significant' applies (important, weighty, or notable), would you consider [the] limitations discussed on page 2 [ i.e., difficulty with squatting, walking, and standing] to be significant?" Tran initially responded " yes" to that question, but then crossed out that response and wrote: " there's no clear criteria for 'significant' therefore unable to comment either way."

SAIF issued a notice of closure that did not include, in its calculation of compensability, the five-percent chronic-condition impairment value permitted by OAR 436-035-0019. Claimant sought reconsideration of that decision before the Administrative Review Unit (ARU), which functions as a part of the Department of Consumer and Business Services (the department), the agency that administers the [266 Or.App. 186] Workers' Compensation Division. The ARU issued an order that did not assign the impairment value on the ground that ...

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