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In re Compensation of Harvey

Court of Appeals of Oregon

July 6, 2017

In the Matter of the Compensation of Mary M. Harvey, Claimant.
v.
SAIF Corporation and Oregon Health And Science University, Respondents. Mary M. HARVEY, Petitioner,

          Argued and submitted January 8, 2016

         Workers' Compensation Board 1300339

          James S. Coon argued the cause for petitioner. With him on the briefs was Swanson Thomas, Coon & Newton.

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

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

         Reversed and remanded for reconsideration.

         Case Summary:

         Claimant fell at work and suffered various compensable injuries, including a concussion. She was awarded permanent partial disability with a Class 2 rating for cognitive impairment related to the concussion. SAIF requested reconsideration of that award and the Appellate Review Unit reduced the cognitive impairment rating to a Class 1 based on the opinion of the medical arbiters. Claimant sought administrative review of that decision, and an administrative law judge and the Workers' Compensation Board, in turn, up Held the Class 1 rating. Claimant seeks judicial review of the board's order, arguing that the board erred by failing to conclude that the opinion of her attending physician-who rated her impairment as a Class 2-was more accurate than that of the medical arbiters.

         Held:

The board's order lacks substantial reason and is therefore insufficient to review for substantial evidence the boards' findings as to the arbiters' opinions.

         [286 Or.App. 540] ORTEGA, P. J.

         Claimant fell at work and suffered various compensable injuries, including a concussion. She was awarded permanent partial disability with a Class 2 rating for cognitive impairment related to the concussion. SAIF requested reconsideration of that award and the Appellate Review Unit (ARU) reduced the cognitive impairment rating to a Class 1 based on the opinion of the medical arbiters. Claimant sought administrative review of that decision, and an administrative law judge (ALJ) and the Workers' Compensation Board (board), in turn, upheld the Class 1 rating. Claimant seeks judicial review of the board's order, arguing that the board erred by failing to conclude that the opinion of her attending physician-who rated her impairment as a Class 2-was more accurate and persuasive than that of the medical arbiters. Because we conclude that the board's order lacks substantial reason and that we therefore lack a sufficient basis to review for substantial evidence the board's findings as to the arbiters' opinions, we reverse and remand. ORS 183.482(8); ORS 656.298(7).

         We recount the facts from the record and as adopted by the board. About two months after claimant sustained her work-related injuries, she began treatment with Dr. Wilson, her attending physician, who specializes in rehabilitation. In the months that followed, claimant underwent two neuropsychological evaluations by two other physicians, which revealed mild cognitive deficits. Wilson, relying on those evaluations and on claimant's reports of increased fatigue, opined that claimant had a Class 2 impairment for cognitive deficits. He opined that claimant's fatigue was related to the increased energy she was expending in attempting to overcome her cognitive deficits at work. The claim was then closed with an award of permanent partial disability for cognitive impairment at a Class 2 rating.

         SAIF requested reconsideration of claimant's award and, as a result, claimant was evaluated by two medical arbiters: Dr. Leland, a neuropsychologist, and Dr. Lorber, a physiatrist. Leland, referencing claimant's difficulty with fatigue and reduced working hours, diagnosed her with a mild cognitive disorder and rated her disability as a Class 1. [286 Or.App. 541] Lorber similarly concluded that claimant fell within a Class 1 rating due to her cognitive deficits. Both medical arbiters noted that claimant ...


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