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In re Compensation of Wright

Court of Appeals of Oregon

December 5, 2018

In the Matter of the Compensation of Robin B. Wright, Claimant.
v.
SAIF CORPORATION and Rogers Administration, Respondents. Robin B. WRIGHT, Petitioner,

          Argued and submitted July 12, 2017

          Workers' Compensation Board 1501167.

          Jodie Anne Phillips Polich argued the cause for petitioner. Also on the briefs was Law Offces of Jodie Anne Phillips Polich, P.C.

          Julie Masters argued the cause and fled the brief for respondents.

          Before Ortega, Presiding Judge, and Hadlock, Judge, and Edmonds, Senior Judge.

         Case Summary: On judicial review, claimant seeks reversal of an order upholding SAIF's denial of an award of "work disability." ORS 656.214. Claimant's job as a paving machine operator caused him to lose some of his hearing. His attending physician concluded that claimant had to wear hearing aids and hearing protection to return to work, but because claimant could not wear them simultaneously, he could not be "released to regular work." ORS 656.214(2) (b). The administrative law judge concluded that claimant did not establish that his inability to use hearing protection with hearing aids changed his regular work, and the Workers' Compensation Board (board) upheld that determination. On review, claimant asserts that the board erred because his ability to communicate is part of his regular work, and wearing hearing aids and hearing protection affected that ability; thus, he is entitled to work disability. Held: Nothing in the record established to what degree communication is part of claimant's regular work. Rather, the question before the board concerned whether claimant could be released to perform his duties as a paver without hearing protection and hearing aids, given that he could not wear both. To that point, substantial evidence supported the board's denial of work disability benefits to claimant.

          [295 Or.App. 152] ORTEGA, P. J.

         Claimant's job as a paving machine operator caused him to lose some of his hearing, and he brought a workers' compensation claim. SAIF awarded him permanent partial disability, which included an award for "impairment" but not for "work disability." ORS 656.214. Claimant sought administrative review, arguing that he was also entitled to work disability because his attending physician did not release him to "regular work." ORS 656.2l4(2)(b). Claimant's physician concluded that he would have to wear hearing aids and hearing protection and, because claimant could not wear them simultaneously, his physician opined that he could not be released to regular work. An administrative law judge (ALJ) was not persuaded and concluded that claimant's inability to use hearing protection with hearing aids did not change the job he held at injury. ORS 656.2l2(1)(d). On review, the Workers' Compensation Board (board) upheld the ALJ's determinations and further concluded that claimant failed to establish that he was entitled to work disability.

         Claimant seeks judicial review, asserting that the board erred in concluding that wearing hearing protection did not result in a change to his "regular work."[1] Specifically, claimant contends that his ability to communicate is part of his "regular work" and that, because wearing hearing aids and hearing protection affected that ability, he was entitled to work disability. We conclude that the board did not err and that the board's order is supported by substantial evidence. ORS l83.482(8)(c).

         As relevant to claimant's case on judicial review, a worker receives an award for impairment and work disability for a work-related injury, "[i]f the worker has not been released to regular work by the attending physician * * * or has not returned to regular work at the job held at the time of injury." ORS 656.2l4(2)(b). Regular work is "the job the worker held at injury." ORS 656.2l4(1)(d). A work disability is an "impairment modified by * * * adaptability to perform a given job." ORS 656.2l4(1)(e).

         [295 Or.App. 153] We summarize the facts consistently with the board's order and the record. Claimant was "diagnosed with work-related hearing loss" by Dr. Lindgren. Dr. Hodgson, who also examined claimant, indicated that claimant's hearing loss was caused by his exposure to noise as a paving machine operator and opined that, considering claimant's impairment was "hearing loss only, he [was] capable of doing his regular work duties without any modification." Claimant's assigned attending physician, Dr. Proano, referred him to an audiologist to receive hearing aids, but concluded that there were "no work restrictions related to [his] claim" and released him to regular work. SAIF closed claimant's claim with a "20 percent loss of the whole person for hearing impairment" without an award of work disability. Claimant sought reconsideration.

         Claimant, through his attorney, sought a second opinion from Lindgren, who indicated on a form prepared by claimant, that claimant would need to wear hearing protection and hearing aids, but could not wear both simultaneously. After reviewing Lindgren's report, Proano agreed and concluded that claimant could not be released to regular work. Lindgren further opined that claimant's "need for hearing aids made him a hazard to himself and others in the workplace." A medical arbiter performed a medical exam, and the appellate reviewer increased claimant's impairment award to 25 percent. The reviewer noted that claimant "indicated that he did not wear hearing protection at his employer at injury for safety reasons as he was required to communicate with fellow employees on the job," but concluded that claimant's inability to wear hearing protection with his hearing aids "would not limit his return to regular work."

         The ALJ agreed with SAIF's denial of work disability, explaining that she was not persuaded that claimant had established an entitlement to work disability under ORS 656.266(1). The ALJ further stated that it was "not clear that the inability to use hearing protection [with his hearing aids] result[ed] in a change in claimant's job at injury or his ability to perform [it]." Claimant asserted that the ALJ erred, but on review, the board upheld the denial.

         [295 Or.App. 154] On judicial review, claimant concedes that he did not wear hearing protection before the injury, even though his employer gave him that option. He nevertheless appears to argue that because the board failed to consider his ability to communicate with his coworkers as part of his "regular work," its assessment of whether he is entitled to work disability is incorrect. Claimant contends that both Lindgren and Proano concluded that he needs hearing aids to hear his coworkers so that he is not a hazard and that he also needs to wear hearing protection to prevent further hearing loss from noise exposure, which also affects his ability to hear. Furthermore, he asserts that, because Proano ...


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