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In re Compensation of Cooper

Court of Appeals of Oregon

April 1, 2015

In the Matter of the Compensation of Penny I. Cooper, Claimant.
v.
Penny I. COOPER, Respondent JELD WEN, INC., Jeld Wen Risk Management, Petitioner,

Argued and submitted July 8, 2013.

Workers' Compensation Board. 1101305.

Scott H. Terrall argued the cause and filed the briefs for petitioner.

Edward J. Harri argued the cause for respondent. With him on the brief was Philip H. Garrow.

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

OPINION

[270 Or.App. 188] HADLOCK, J.

Employer seeks review of an order of the Workers' Compensation Board that affirmed an award of permanent partial disability

Page 1276

benefits to claimant. Employer accepted claimant's claim for a left-ankle strain after she was injured in an accident at work in 2008. In 2010, employer closed the claim without an award of permanent disability. Claimant sought reconsideration by the Appellate Review Unit of the Workers' Compensation Division (ARU). While the reconsideration proceeding was pending, employer issued a denial of the compensability of claimant's " current left ankle condition," asserting that her current condition and any claimed need for treatment or disability associated with it was not related to the 2008 work injury. Thereafter, in the reconsideration proceeding, the ARU issued an order in which it modified employer's notice of closure to include an award of permanent partial disability based on impairment findings made by a medical arbiter appointed as part of the reconsideration process. The board affirmed that award. Employer seeks judicial review, asserting that the medical arbiter improperly expressed an opinion on the compensability of claimant's then-current condition. We affirm.

The following facts are not in dispute. Claimant injured her left ankle on the job in June 2008. Employer accepted her claim for a left-ankle strain. After receiving treatment from a number of doctors, claimant had reconstructive surgery on her ankle in April 2009. She continued to have problems with the ankle, reporting substantial pain and difficulty remaining on her feet for extended periods.

Claimant was examined by an insurance examiner, Dr. Yodlowski, in April 2010. Yodlowski opined that claimant had been medically stationary since August 21, 2008. She stated that no objective findings explained claimant's complaints. However, Yodlowski's examination revealed " mildly limited range of motion at the left foot and ankle when compared to the right."

In June 2010, claimant's attending physician, Dr. Stewart, reviewed Yodlowski's report. He agreed that claimant was likely medically stationary and that her [270 Or.App. 189] complaints could not be explained by objective findings: " Her complaints are purely subjective. There is no objective evidence or objective findings to indicate any permanent impairment associated with her left ankle condition. Relative to her left ankle, she is released to return to her regular work without restrictions. The claim may be closed with no permanent impairment."

Employer issued a notice that it was closing the claim with no award of permanent partial disability. Claimant requested reconsideration by the ARU, which issued an order rescinding the notice of closure. The order stated that employer had " failed to obtain sufficient information to determine the extent of disability," noting that Yodlowski's report had stated that claimant had decreased range of motion in her left ankle and that neither Yodlowski nor Stewart had stated that the decrease was not attributable to the accepted condition.

In response to the order, employer obtained from Stewart a statement that " claimant continues to be medically stationary relative to this industrial injury claim. She has ongoing subjective complaints that are unsubstantiated by any objective findings and are of unknown etiology. Any limitations relating to claimant's left ankle are based solely on her subjective complaints rather than any objective findings." Stewart stated that he had reviewed Yodlowski's report again and opined that the report did not document " any functionally significant loss in range of motion." He reiterated ...


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