In the Matter of the Compensation of Keith J. Wiggins, Claimant.
SAIF CORPORATION and Conkraft Construction, Inc., Respondents. Keith J. WIGGINS, Petitioner,
and submitted December 18, 2018
Workers' Compensation Board 1603000
S. Coon argued the cause for petitioner. Also on the briefs
was Thomas, Coon, Newton & Frost.
L. Runner argued the cause and fled the brief for
Lagesen, Presiding Judge, and DeVore, Judge, and James,
Summary: Claimant petitions for judicial review of an order
of the Workers' Compensation Board. In that order, the
board concluded that claimant was not entitled to an award of
penalties and attorney fees under ORS 656.268(5) (f) or ORS
656.262(11) after determining that the form that SAIF
Corporation provided to claimant's attending physician
properly referred to the legal standard adopted by the
Workers' Compensation Division (WCD) for a "chronic
condition" impairment award under OAR 436-035-0019.
Claimant contends that the form did not correctly articulate
that standard. Held: The board erred in determining
that SAIF's form correctly articulated the WCD standard,
because the "Significant limitation (more than 2/3 of
the time)" check-the-box option on the form could only
mean that the worker is limited for more than two thirds of
the time, which is not the WCD standard. Broeke v.
SAIF, 300 Or.App. 91, 98, P.3d (2019).
Or.App. 320] LAGESEN, P. J.
petitions for judicial review of an order of the Workers'
Compensation Board. In that order, the board concluded that
claimant was not entitled to an award of penalties and
attorney fees under ORS 656.268(5Xf) or ORS 656.262(11) after
determining that a form that SAIF Corporation provided to
claimant's attending physician referred to the legal
standard adopted by the Workers' Compensation Division
(WCD) for a "chronic condition" impairment award
under OAR 436-035-0019 and rejecting claimant's
contention that the form did not correctly articulate the WCD
standard. Because we conclude that the board erred in
determining that SAIF's form correctly articulated the
WCD standard, we reverse and remand to the board for
legal background is necessary for context. Claimant seeks
penalties and fees based on what claimant contends was
unreasonable behavior by SAIF in determining whether to award
him a "chronic condition" impairment value under
OAR 436-035-0019. Pertinent to this case, which centers on an
injury to claimant's right knee, that rule provides:
"A worker is entitled to a 5% chronic condition
impairment value for [the upper leg from the knee and above],
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 upper leg
from the knee and above]."
OAR 436-035-0019(1)(b). As we recently recounted in
Broeke v. SAIF, 300 Or.App. 91,
__P.3d__(2019), in Spurger v. SAIF, 266 Or.App. 183,
537 P.3d 883 (2014), we concluded that the phrase
"significantly limited" in that rule had not been
adequately defined by the board or the promulgating agency,
the WCD. We returned the case to the board so that the
deficiency could be corrected. Spurger, 266 Or.App.
at 194-95; Broeke, 300 Or.App. at 97-98 (setting
our decision in Spurger, the director of WCD issued
an Industry Notice supplying the necessary definition. In the
notice, the director explained:
[300 Or.App. 321] "This notice explains how WCD will
determine 'whether the limitations described in the
medical opinion evidence show that the worker is
significantly limited' under OAR 436-035-0019(1).
'Significantly limited' is defined by neither rule
nor statute. Absent statutory and administrative definition,
we look to a term's plain meaning. 'Significant'
is defined, most relevantly, as 'having or expressing a
meaning'; 'meaningful' or 'important;
notable; valuable.' See American Heritage
Dictionary, New College Edition; see also, Webster's II
New College Dictionary. 'Limited' is defined as
'confined or restricted.' Id.
"In applying those definitions to OAR 436-035-0019(1),
it is necessary to establish when a confinement or
restriction to the 'repetitive use' of a body part is
important, meaningful, or notable. In the context of work
restrictions, a repetitive use limitation is generally
compensable when the worker is limited to 'frequent'
repetitive use or action. Although OAR 436-035-0019(1)
provides an award for impairment, WCD finds it reasonable to
adopt an equivalent standard for the limited purpose of
defining when a confinement or restriction is important,
meaningful, or notable. Accordingly, WCD will interpret
confined or restricted ('limited') 'repetitive
use' under OAR 436-035-0019(1) as important, meaningful,
or notable ('significant') when the worker is limited