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In re Compensation of Spurger

Court of Appeals of Oregon

June 6, 2018

In the Matter of the Compensation of Angelica M. Spurger, Claimant,
v.
SAIF CORPORATION and Pacifc Health and Rehabilitation, Respondents. Angelica M. SPURGER, Petitioner,

          Argued and submitted March 7, 2017

          Workers' Compensation Board 1006324

          Donald M. Hooten argued the cause and fled the briefs for petitioner.

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

          Before DeHoog, Presiding Judge, and Armstrong, Judge, and Aoyagi, Judge. [*]

         Case Summary:

         Claimant seeks judicial review of an order of the Workers' Compensation Board that she is not entitled to an award of five percent impairment for a chronic and permanent medical condition. Claimant contends that, in light of medical evidence that she would have "difficulty" with repetitive use of the hip, her condition meets the legal standard of a "significant" limitation under OAR 436-035-0019 for a chronic condition impairment value. Held: The board's order lacked substantial reason because it did not explain why a "difficulty" performing repetitive squatting, walking long distances, and static standing is not a "significant" limitation on claimant's use of the hip for purposes of OAR 436-035-0019.

         Reversed and remanded.

         [292 Or.App. 228] ARMSTRONG, J.

         In this workers' compensation case, claimant challenges the Workers' Compensation Board's determination that she is not entitled to an award of five percent impairment for a chronic and permanent medical condition, as defined in OAR 436-035-0019(1)(i). This is the second time that we have considered a board order rejecting claimant's request for an award for chronic condition impairment. See Spurger v. SAIF, 266 Or.App. 183, 337 P.3d 883 (2014). We conclude that the board's order is not supported by substantial reason, and we therefore reverse and remand the order.

         Claimant works for employer as a certified medication aid (CMA). Claimant's job overseeing distribution of medication for approximately 50 patients per shift has a "light" classification, and involves continuously being on her feet, frequently changing positions, walking, and standing. Claimant's job also requires squatting to reach a medication drawer, occasional sitting, repositioning a patient, and helping an RN by lifting or holding a limb.

         Claimant suffered an injury at work while moving a bed. SAIF accepted a claim for lumbar strain, left hip strain, and trochanteric bursitis. Within a week or so of the injury, claimant was released to modified work at her regular hours and wages. At the time of claim closure, claimant was examined by Dr. Wong at SAIF's request. In rating claimant's limitation in repetitive use relating to the left hip, Wong had a choice of "no limitation, " "some limitation, " or "significant limitation, " and he checked the box indicating that claimant had "some limitation." Claimant's treating physician concurred in that opinion. Given further information by claimant's attorney as to what constitutes a "significant limitation, " Wong maintained his opinion that claimant has "some limitation." However, Wong specifically concurred in claimant's counsel's statement that claimant would have "difficulty" with "repetitive squatting, walking long distances, and static standing for long periods of time." He released claimant for work, recommending that she be limited to "light/sedentary" work and that she work two days on, one day off, two days on. Claimant's treating physician concurred in Wong's opinion and recommendations.

         [292 Or.App. 229] OAR 436-035-0019(1)(i) defines "chronic condition impairment":

"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 ...

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