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In re Compensation of Godinez

Court of Appeals of Oregon

March 11, 2015

In the Matter of the Compensation of Juan L. Godinez, Claimant.
v.
SAIF CORPORATION and Troy Marsh, Inc., Respondents Juan L. GODINEZ, Petitioner,

Argued and Submitted June 5, 2014.

Workers' Compensation Board 1200796.

R. Adian Martin argued the cause and filed the briefs for petitioner.

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

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 531

[269 Or.App. 579] DEVORE, J.

Claimant seeks review of an order by the Workers' Compensation Board (board) affirming an order of an administrative law judge (ALJ). The ALJ upheld an order on reconsideration by the Appellate Review Unit (ARU) of the Workers' Compensation Division of the Department of Consumer and Business Services (DCBS) rejecting claimant's request for an award of compensation including an impairment value for a chronic condition significantly limiting claimant's repetitive use of his left shoulder. On review for legal error, we affirm. See ORS 183.482(8)(a); ORS 656.298(7) (judicial review).

Page 532

The relevant facts are undisputed. While working as a siding installer, claimant injured his left shoulder when he fell off of an extension ladder. He underwent surgery, and the post-operative diagnosis was " traumatic instability." A work capacity evaluation noted reduced motion and strength in the shoulder and, based on those findings, limited claimant's left arm overhead reaching to a weight limit of 15 pounds and limited siding installation to below head level. The evaluation stated that claimant could not meet the demands of his regular job. An independent medical examination, performed the same day, resulted in similar findings, except for somewhat greater shoulder motion. The attending physician, Dr. Carrie Ware, concurred in both exams and noted that her conclusions regarding range of motion were more consistent with the work capacity evaluation.

SAIF issued a notice of closure with findings based on the work capacity evaluation. The accepted conditions for the left-shoulder injury included anterior dislocation, non-displaced glenoid rim fracture, type II SLAP lesion, and Hills-Sachs lesion. Impairment values were given for range of motion and strength loss, but no chronic condition impairment value was awarded.

Claimant requested reconsideration of the notice by the ARU. In the request, claimant included a clarification report from Ware. Ware was asked, " Does the patient have a significant limitation in repetitive use [of] his left arm above chest level?" Ware answered yes, and wrote, " Should not lift materials exceeding 20 lbs above shoulder level with [269 Or.App. 580] left arm." The parties did not dispute Ware's impairment findings.

In the order on reconsideration, the ARU affirmed the whole person impairment value and increased the work disability to 21 percent. The ARU, however, did not award the five percent " chronic condition impairment value" provided by OAR 436-035-0019(1). Under that rule, a claimant is entitled to a chronic condition impairment value " 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 listed body part]." OAR 436-035-0019(1) (emphasis added). In its order, the ARU determined:

" The attending physician clarified the worker was limited in repetitive use over the shoulder only. Chronic condition impairment must include the worker's overall conditions/motions and not just one motion. Accordingly, the clarification does not meet the minimum threshold for rating chronic ...

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