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In re Compensation of Broeke

Court of Appeals of Oregon

October 16, 2019

In the Matter of the Compensation of Brit L. Broeke, Claimant.
v.
SAIF CORPORATION and Chipman Corporation - Chipman Moving & Storage, Respondents. Brit L. BROEKE, Petitioner,

          Argued and submitted June 26, 2018

          Workers' Compensation Board 1601590

          James 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 respondents.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case 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.

          [300 Or.App. 92] LAGESEN, P. J.

         Claimant's 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, [1] 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.

         I. BACKGROUND

         Although 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).

         As 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.

         In 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.

         Claimant 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]."

         Claimant 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.

         The ALJ 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 ...


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