In the Matter of the Compensation of Robin B. Wright, Claimant.
SAIF CORPORATION and Rogers Administration, Respondents. Robin B. WRIGHT, Petitioner,
and submitted July 12, 2017
Workers' Compensation Board 1501167.
Anne Phillips Polich argued the cause for petitioner. Also on
the briefs was Law Offces of Jodie Anne Phillips Polich, P.C.
Masters argued the cause and fled the brief for respondents.
Ortega, Presiding Judge, and Hadlock, Judge, and Edmonds,
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
Or.App. 152] ORTEGA, P. J.
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.
seeks judicial review, asserting that the board erred in
concluding that wearing hearing protection did not result in
a change to his "regular work." 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).
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).
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.
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."
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.
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