In the Matter of the Compensation of Brit L. Broeke, Claimant.
SAIF CORPORATION and Chipman Corporation - Chipman Moving & Storage, Respondents. Brit L. BROEKE, Petitioner,
and submitted June 26, 2018
Workers' Compensation Board 1601590
S. Coon argued the cause for petitioner. Also on the briefs
was Thomas, Coon, Newton & Frost.
Allison Lesh argued the cause and fled the brief for
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Claimant appeals a final order of the Workers'
Compensation Board (WCB) denying claimant's occupational
disease claims for plantar fasciitis in each of his feet.
Claimant assigns error to WCB's determination that
claimant is not entitled to an award for "15% of the
leg" under OAR 436-035-0230 or to a five percent
"chronic condition" award under OAR 436-035-0019.
Claimant also requests penalties and fees because respondent
SAIF Corporation provided claimant's treating physician
with a misleading form when seeking information about
claimant's limitations. Held: WCB's
conclusion as to the "15% of the leg" award was
supported by substantial evidence and substantial reason, and
therefore affirmed. The Court of Appeals reversed and
remanded as to the "chronic condition" award and
the penalties and fees claim because the WCB's order
failed to explain why claimant's significant diffculties
using his feet to stand and walk do not rise to the level of
a significant limitation under OAR 436-035-0019, as the
Workers' Compensation Division has interpreted that rule.
Or.App. 92] LAGESEN, P. J.
long-term employment in a warehouse caused him to suffer from
plantar fasciitis in each foot. That resulted in a
compensable occupational disease claim under the Workers'
Compensation Law, ORS chapter 656. In this proceeding for
judicial review of a final order of the Workers'
Compensation Board,  at issue is the extent of claimant's
permanent disability from the plantar fasciitis. The primary
questions before us on that point are (1) whether the board
erred in determining that claimant is not entitled to an
award for "15% of the leg" under OAR 436-035-0230
and (2) whether the board erred in determining that claimant
is not entitled to a five percent "chronic
condition" award under OAR 436-035-0019. Also at issue
is whether claimant is entitled to penalties and fees
because, in claimant's view, respondent SAIF Corporation
provided claimant's treating physician with a misleading
form when seeking information about claimant's
limitations. We uphold the board's 15 percent-of-the-leg
determination, and reverse and remand its chronic-condition
determination. As to penalties and fees, we conclude that
SAIF's form was misleading but leave it to the board in
the first instance to determine whether penalties and fees
are authorized and warranted under the circumstances.
there are factual disputes relating to claimant's 15
percent-of-the-leg chronic-condition claims, the facts giving
context to the issues before us are not disputed. We draw
them from the board's order, supplementing with
additional undisputed facts drawn from the evidence in the
record. Robin v. Teacher Standards and Practices
Comm., 291 Or.App. 379, 381, 421 P.3d 385, rev
den, 363 Or. 677 (2018).
noted, claimant suffers from work-related disabling plantar
fasciitis in both feet and has a compensable occupational
disease claim for the accepted conditions of [300 Or.App. 93]
right plantar fasciitis and left plantar fasciitis. SAIF is
the insurer on that claim.
December 2015, SAIF issued a Notice of Closure on the claim.
Based on the opinion of claimant's treating physician,
Dr. Walters, SAIF determined that claimant's plantar
fasciitis became medically stationary as of October 21, 2015.
The Notice of Closure awarded four percent whole person
impairment for loss of range of motion to several toes on the
left foot and work disability of $16, 056.54.
requested reconsideration by the Appellate Review Unit (ARU)
of the Workers' Compensation Division, as allowed by ORS
656.268. In its Order on Reconsideration, the ARU affirmed
the four percent whole person impairment award but awarded an
additional $2, 676.09 in work disability. The ARU did not
award a 15 percent-of-the-leg impairment value under OAR
436-035-0230(14), which provides for that impairment value
"[w]hen the worker cannot be on his or her feet for more
than two hours in an 8-hour period." The ARU also did
not award a chronic condition impairment value under OAR
436-035-0019(1)(a), which provides that "[a] worker is
entitled to a 5% chronic condition impairment value for [the
lower leg], when a preponderance of medical opinion
establishes that, due to a chronic and permanent medical
condition, the worker is significantly limited in the
repetitive use of [the lower leg]."
requested a hearing. At the hearing, he contended that he was
entitled to a 15 percent-of-the-leg impairment value under
OAR 436-035-0230(14), as well as a five percent chronic
condition impairment value under OAR 436-035-0019(1)(a), and
that the ARU erred in concluding otherwise. He argued further
that the ALJ should assess a penalty and fee under either ORS
656.268(5)(f) or ORS 656.382(1) if he concluded that claimant
was entitled to a chronic condition impairment value.
Claimant also argued that a penalty and fee were warranted
because SAIF had solicited information from Walters using a
questionnaire that was unreasonable in its format.
disagreed. Addressing the 15 percent-of-the-leg impairment
value, the ALJ found that the evidence was not persuasive
that claimant could not be on his feet [300 Or.App. 94] for
more than two hours in an eight-hour period. The ALJ
discounted statements that Walters had made substantially
before claimant became medically stationary, reasoning that
those statements did not speak to claimant's permanent
disability. As to ...