In the Matter of the Compensation of Jason D. Netherton, Claimant. Jason D. NETHERTON, Petitioner,
AEROTEK INC. - ALLEGIS GROUP INC., Respondent.
and Submitted May 16, 2017
Compensation Board 1404276
M. Quinn argued the cause and fled the briefs for petitioner.
P. Keene argued the cause for respondent. With him on the
brief was Oregon Workers' Compensation Institute, LLC.
DeHoog, Presiding Judge, and Hadlock, Judge, and Tookey,
Summary: Claimant seeks judicial review of an order of the
Workers' Compensation Board, which reduced his award for
permanent partial disability after his occupational disease
claim was closed under ORS 656.268(1)(a). The board found
that, although claimant suffered from impaired range of
motion, the impairment had not been caused by the accepted
occupational disease. Claimant argues that the board erred,
because ORS 656.268(1)(a) does not allow the board to
apportion impairment and because the board failed to apply
the Oregon Disability Rating Standards. Held: The
board did not err. First, claimant's apportionment
argument is foreclosed by McDermott v. SAIF, 286
Or.App. 406, 398 P.3d 964 (2017). Second, the board did not
fail to apply the Oregon Disability Rating Standards, because
the standards entitle a claimant to benefits only for
impairment "due to" or "resulting from"
the accepted condition.
Or.App. 551] DEHOOG, P. J.
petitions for review of an order of the Workers'
Compensation Board. The board reduced claimant's
permanent partial disability (PPD) award based on the finding
that claimant's accepted occupational disease did not
cause claimant's diminished range of motion in his
fingers. Claimant does not contest the board's factual
finding regarding causation but argues that he is nonetheless
entitled to PPD benefits for the diminished range of motion.
We conclude that this case is controlled by our prior
decisions in McDermott v. SAIF, 286 Or.App. 406, 398
P.3d 964 (2017), and Magana-Marquez v. SAIF, 276
Or.App. 32, 366 P.3d 764 (2016), and affirm.
filed a workers' compensation claim for carpal tunnel
syndrome, which employer accepted as an occupational disease.
At claim closure, employer's insurer awarded claimant 34
percent PPD based on lost range of motion in both wrists,
lost range of motion in multiple fingers, and decreased
sensation in the right middle finger. Employer requested
reconsideration of those impairment findings by the Appellate
Review Unit (ARU) of the Workers' Compensation Division.
A medical arbiter panel examined claimant and found that,
although the range of motion measurements for claimant's
fingers were "below the standard 'norms'
outlined in the Oregon Disability Rating Standards [, ] ***
none of the loss could be attributed to the accepted
condition." According to the arbiter panel,
claimant's reduced range of motion is "normal for
[claimant], and is due to body habitus rather than to the
accepted condition and subsequent surgery." As a result,
the ARU awarded no impairment value for the lost range of
motion in claimant's fingers and reduced his overall PPD
award to four percent. Claimant requested a hearing before an
administrative law judge (ALJ), then appealed the ALJ's
decision to the board; both upheld the ARU's decision.
judicial review, claimant's argument that the board erred
in affirming the reduction to his PPD award raises two
distinct issues. First, claimant argues that the board may
apportion impairment only when a claim for a combined or
consequential condition is closed under ORS [292 Or.App. 552]
656.268(1)(b), and not when, as here, a claim is closed under
ORS 656.268(1)(a). Second, he argues that impairment
determinations must be based on the Oregon Disability Rating
Standards, which are uniform standards that the Director of
the Department of Consumer and Business Services has adopted
under ORS 656.726(4)(f), rather than a claimant's actual
physical abilities prior to the onset of the accepted
condition. According to claimant, it was therefore error for
the ARU to reduce his award based on "body
habitus," i.e., claimant's natural range of
motion in his fingers. Those arguments raise only questions
of law, and we review the board's order for legal error.
ORS 656.298(7) (review of board orders shall be as provided
in ORS 183.482); ORS 183.482(8)(a) (providing for review for
decision in McDermott forecloses claimant's
first argument. In McDermott, we concluded that the
board's authority to apportion impairment is not limited
to closures under ORS 656.268(1)(b). 286 Or.App. at 420. We
reasoned that, in all circumstances, there must be a causal
link between the compensable injury or disease and the PPD
award. Id. at 416. We cited ORS 656.214(1), which
defines "impairment" as "the loss of use or
function of a body part or system due to the
compensable industrial injury or occupational disease,"
and defines "permanent partial disability" as
"[p]ermanent impairment resulting from the
compensable industrial injury or occupational disease."
(Emphases added.) Further, ORS 656.214(2) provides that
benefits shall be awarded "[w]hen permanent partial
disability [292 Or.App. 553] results from a
compensable injury or occupational disease [.]"
(Emphasis added.) As a result, ORS 656.214 "implicitly
requires apportionment in the context of any claim when the
impairment is not 'due to' or the result of the
compensable injury under the applicable standard of
proof." McDermott, 286 Or.App. at 416. The
board therefore did not err when it reduced the
claimant's PPD benefits based on the percentage of his
impairment that the board concluded was attributable to a
preexisting arthritic condition, even though the claimant had
never sought to have the arthritis accepted as part of a
combined condition. Id. at 408-09.
case differs from McDermott and our cases following
McDermott only in that the accepted condition here
is an occupational disease rather than an injury. That
distinction does not affect our analysis. As quoted above,
ORS 656.214 defines both impairment and PPD in reference to
"the compensable industrial injury or occupational
disease." Also, under the relevant administrative rule,
the procedures for determining impairment are substantially
identical, whether for an injury claim or an occupational
disease claim. See OAR 436-035-0013(2)(a), (d)
(requiring identification of "each body part or system
in which use or function is permanently lost as a result
of" the accepted injury or occupational disease,
followed by determination of "the portion of the loss
caused by" the accepted injury, occupational disease, or
other causes). Apportionment of impairment for claims closed
under ORS 656.268(1)(a) is therefore appropriate whether for
an injury claim, as in McDermott, or an occupational
disease claim, as in this case.
second argument similarly turns on whether there is a causal
link between claimant's accepted carpal tunnel condition
and the diminished range of motion in his fingers. Claimant
argues that the board improperly failed to determine
impairment according to the applicable uniform disability
rating standards, located in OAR 436-035-0060. See
ORS 656.2l4(1)(a) (impairment is loss of use or function of a
body part or system "determined in accordance [292
Or.App. 554] with the standards provided under ORS
656.726"); ORS 656.726(4)(f) (authorizing the Director
of the Department of Consumer and Business Services to
"[p]rovide standards for the evaluation of
disabilities"). Claimant contends that, because the ARU
found that the range-of-motion measurements in his fingers