Marvin Wood Products v. Callow

• Decision Date: 22 November 2000
• Parties: In the Matter of the Compensation of Patrick J. Callow, Claimant. MARVIN WOOD PRODUCTS, and Liberty Mutual Insurance, Petitioners, v. Patrick J. CALLOW, Respondent.
• Court: Oregon Court of Appeals

14 P.3d 686

171 Or. App. 175

In the Matter of the Compensation of Patrick J. Callow, Claimant.

MARVIN WOOD PRODUCTS, and Liberty Mutual Insurance, Petitioners, v. Patrick J. CALLOW, Respondent.

(WCB 97-08869; CA A103651)

Court of Appeals of Oregon.

Argued and Submitted June 14, 1999.

Decided November 22, 2000.

Vera Langer, Portland, argued the cause for petitioners. With her on the brief was Scheminske, Lyons & Bussman, LLP.

Clayton C. Patrick, Salem, argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Employer seeks review of a Workers' Compensation Board (Board) order, seeking to decrease the amount of scheduled permanent partial disability awarded by the Board. On review, employer argues that the Board erroneously assigned it the burden of proof on the extent of claimant's permanent partial disability. Employer also asserts that the Board erroneously rated claimant's disability based on the medical arbiters' findings, even though the medical arbiters expressly reported those findings to be invalid.¹ For the reasons that we explain below, we reverse and remand for further proceedings.

The facts relevant to our review are primarily procedural in nature. Employer accepted claimant's claim for bilateral carpal tunnel syndrome and tendonitis in claimant's wrists and forearms. Upon claim closure, the Department of Consumer and Business Services (DCBS) awarded claimant five percent permanent partial disability for loss of use of each wrist and forearm due to chronic pain. Claimant sought reconsideration by the Appellate Review Unit (ARU) of DCBS, asserting that the disability rating should be based on lost range of motion, lost sensation, and lost strength, in addition to chronic pain. Because employer requested an examination by a three-physician arbiter panel, the record on reconsideration consisted of the report of the arbiter panel, as well as a report by claimant's attending physician, Dr. Warren.

Warren's report concluded that claimant had full range of motion in his wrists but was permanently limited in his ability to perform activities requiring repetitive use of his hands and wrists. Contrary to Warren's report, the medical arbiters made findings that claimant's injury resulted in reduced range of motion in his wrists. Significantly, however, the arbiters also reported that "the panel finds the examination to be invalid." As a result, the arbiters were "unable to set any limitations on the [claimant's] repetitive ability to use either hand, wrist, or forearm due to the diagnosed chronic and permanent medical condition arising out of the accepted injury." The arbiters did not explain why they found their examination to be invalid.

In the order on reconsideration, the ARU rated claimant's disability using Warren's findings that claimant is limited in his ability to use his hands and wrists repetitively. The ARU also used the arbiters' range of motion findings, noting that, although the arbiter panel found its examination to be invalid, it had not explained that finding. Consequently, the ARU's order on reconsideration increased claimant's scheduled permanent disability award to nine percent for the right wrist and 11 percent for the left wrist.

Employer requested a hearing to challenge the increased disability award. The Administrative Law Judge (ALJ) affirmed the ARU's order on reconsideration, and employer sought further review by the Board. The Board affirmed the ALJ's order, largely adopting that order. Employer then sought reconsideration by the Board, which the Board granted. On reconsideration, the Board clarified its decision in certain respects, but it adhered to the increased disability rating determined by the ARU and affirmed by the ALJ.

In its first assignment of error, employer argues that the Board improperly placed the burden of proof on it to establish the extent of claimant's disability. Specifically, employer cites the following portion of the Board's order as impermissibly shifting the burden of proof in the proceeding:

"[W]e note that this matter involves a request for hearing filed by the insurer to challenge the additional award of permanent disability granted to claimant by the Order on Reconsideration. Claimant did not seek an increased award. Under such circumstances, we have previously held that the employer has the burden of proving that claimant's permanent disability award should be reduced. See Roberto Rodriguez, 46 Van Natta 1723 (1994)[.]"

Employer argues that, "[i]n an initial claim for disability compensation, the injured worker has, at all levels of adjudication of that claim, the burden to prove the nature and extent of disability." Claimant takes issue with the premise of employer's argument—i.e., that the burden of proof on the extent of disability is on claimant throughout all levels of the adjudication of his initial claim for disability compensation. Rather, according to claimant, that burden shifts to the employer when it is the employer, rather than the injured worker, that seeks further review of the disability award. Although we affirm the Board on that point, we write to clarify the role of burden of proof in proceedings of this kind.

As both parties acknowledge, ORS 656.266 places the "burden of proving" the compensability of an injury, together with "the nature and extent of any disability resulting therefrom," on an injured worker. The purpose of the burden of proof in that regard is the same as in other legal contexts: to allocate the risk of nonpersuasion. In effect, assignment of the burden of proof is a way to declare which party loses if the evidence on an issue appears to be equally balanced or if the factfinder cannot say upon which side the evidence weighs more heavily. See generally Riley Hill General Contractor v. Tandy Corp., 303 Or. 390, 394-95, 737 P.2d 595 (1987) (discussing meaning of burden of proof where burden must be satisfied by preponderance of evidence); Russell v. Ford Motor Company, 281 Or. 587, 596-97, 575 P.2d 1383 (1978) (same). Conceptually, the burden of proof encompasses two distinct burdens: the burden of producing evidence of a particular fact (i.e., the burden of production), and the burden of convincing the trier of fact that the alleged fact is true (i.e., the burden of persuasion). See generally McCormick, 2 Evidence § 336 at 425 (4th ed. 1992).²

Logically, the allocation of the burden of proof has its greatest relevance at the stage of the proceeding in which the record is developed and a factfinder initially resolves the issues in dispute. At that stage, the failure to produce evidence at all, or the failure of the evidence produced to persuade the factfinder, will be fatal to the party with the burden of proof. But at subsequent levels of review, the significance of the burden of proof depends on the nature of the review to be performed. If review is de novo—in which case the reviewing body has license to reweigh the facts and reassess the persuasive force of the evidence³—the risk of nonpersuasion (and, hence, the burden of proof) potentially can remain a factor in determining which party prevails. When review is not de novo, however, the only factual review performed is for the sufficiency of evidence pursuant to a standard that essentially tests whether a rational or reasonable factfinder could have been persuaded by the evidence; the reviewing body does not weigh the evidence anew or otherwise decide whether to reach the same result as the initial factfinder.⁴ In such a case, no burden remains on the party to persuade the reviewing body of the truth of the factual evidence produced, and neither party can be said to bear the risk of factual nonpersuasion in the same way that the risk is borne at the factfinding level.

Review of a disability-extent determination at a hearing before an ALJ and on review before the Board is de novo. See generally ORS 656.283(7) (ALJ hearing); ORS 656.295(5) (Board review). We therefore agree with employer that, as a general proposition, claimant retains the burden of proof on the nature and extent of disability at the level of Board review. SAIF v. Schiller, 151 Or.App. 58, 63, 947 P.2d 1128 (1997), rev. den. 326 Or. 389, 952 P.2d 62 (1998) (claimant continues to have burden at Board level to prove that claim is disabling). Thus, if the issues raised by the party seeking an ALJ hearing and Board review trigger the need to review the factual evidence for its weight, the injured worker retains the burden of proof in the sense that, if the ALJ or the Board finds the evidence to be equally balanced and is unable to say upon which side it weighs heavier, the injured worker bears the consequences of nonpersuasion. Indeed, that is how the Board has resolved disputes over extent of disability when the issues have called on the Board to weigh the evidence and the Board has found the evidence equally balanced or simply unpersuasive. See, e.g., Raymond T. Cox, Jr., 47 Van Natta 1628 (1995) (on insurer's request for review, Board modified award of permanent disability, concluding that evidence on certain issues was in equipoise and that claimant therefore did not carry burden of proof); see also Cynthia R. Deronden-Pos, 51 Van Natta 1517 (1999) (on insurer's request for review of ALJ's conclusion that condition was compensable, Board reversed, finding the medical evidence "at best, to be in equipoise" and that claimant therefore did not carry her burden of proof).⁵

Here, however, we do not understand the Board to have assigned the burden of proof to employer in that sense. Citing its earlier decision in Roberto Rodriguez, 46 Van Natta 1722 (1994), the Board observed that claimant had not sought the ALJ hearing and later Board review; rather, employer had pursued further review at both levels seeking to have the disability award decreased. In the Board's view, employer, as the party seeking affirmative...