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In re Compensation of Wiggins

Court of Appeals of Oregon

October 30, 2019

In the Matter of the Compensation of Keith J. Wiggins, Claimant.
v.
SAIF CORPORATION and Conkraft Construction, Inc., Respondents. Keith J. WIGGINS, Petitioner,

          Argued and submitted December 18, 2018

          Workers' Compensation Board 1603000

          James S. Coon argued the cause for petitioner. Also on the briefs was Thomas, Coon, Newton & Frost.

          David L. Runner argued the cause and fled the brief for respondents.

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

         Case 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).

         [300 Or.App. 320] LAGESEN, P. J.

         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(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 reconsideration.

         Some 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 forth history).

         Following 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 to ...

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