Pietrzykowski v. Albertsons, Inc.

• Decision Date: 04 May 2005
• Citation: 199 Or. App. 387,111 P.3d 802
• Parties: In the Matter of the Compensation of James D. Pietrzykowski, Claimant. James D. PIETRZYKOWSKI, Petitioner, v. ALBERTSONS, INC., Respondent.
• Court: Oregon Court of Appeals

111 P.3d 802

199 Or. App. 387

In the Matter of the Compensation of James D. Pietrzykowski, Claimant.

James D. PIETRZYKOWSKI, Petitioner, v. ALBERTSONS, INC., Respondent.

02-04383; A121235.

Court of Appeals of Oregon.

Argued and Submitted October 5, 2004.

Decided May 4, 2005.

Jodie Phillips Polich argued the cause for petitioner. With her on the opening brief were Law Offices of Jodie Anne Phillips Polich, P. C., and George J. Wall and Welch, Bruun & Green, Portland.

Kenneth Kleinsmith argued the cause for respondent. With him on the brief was Radler, Bohy, Replogle & Miller.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and EDMONDS, Judge.

EDMONDS, J.

Claimant seeks judicial review of a Workers' Compensation Board (board) order that reduced an award on reconsideration of 28.53 percent scheduled permanent partial disability for claimant's binaural hearing loss by the Department of Consumer and Business Services (department) to an award of 6.88 percent. ORS 656.298(1). In making that award, the board held that the administrative law judge (ALJ) did not err in allowing employer to raise the issue of the reliability of an audiogram for the first time at the hearing before the ALJ. We review the board's factual findings in its order for substantial evidence and its legal conclusions for errors of law, ORS 656.298(7) and ORS 183.482, and remand.

The following historical facts from the board's order frame the issue on review:

"Claimant has an accepted claim for bilateral high-tone hearing loss.[¹] On February 27, 2001, Dr. Lindgren, the attending physician, performed an audiogram that revealed binaural hearing loss of 6.88 percent. Dr. Lindgren verified that claimant had no noise exposure for more than 24 hours before the examination.

"On June 26, 2001, Dr. Lipman examined claimant at the employer's request. Dr. Lipman's audiologist performed an audiogram that showed a substantially greater degree of hearing loss than that measured by Dr. Lindgren. Dr. Lipman's report did not mention whether claimant had been exposed to any noise during the 14 hours preceding the audiogram.

"On February 14, 2002, a Notice of Closure awarded 6.88 percent scheduled permanent disability. Dr. Lindgren subsequently reviewed Dr. Lipman's report, including the audiogram results, and concurred with his findings and conclusions. Claimant requested reconsideration of the closure notice, but did not indicate any disagreement with the impairment findings or request a medical arbiter examination.

"On May 13, 2002, an Order on Reconsideration increased claimant's scheduled permanent disability award from 6.88 percent to 28.53 percent based on Dr. Lipman's audiogram results (as concurred by Dr. Lindgren). The employer requested a hearing."

At the hearing, the ALJ framed the issue between the parties as "which audiogram [Lipman's or Lindgren's] should be used in rating claimant's permanent disability." The ALJ affirmed the notice of closure award of 6.88 percent scheduled permanent disability for binaural hearing loss concluding that "Lipman's results are less reliable * * *." On appeal, the board affirmed the ALJ's order.

On review, claimant makes two assignments of error. First, claimant argues that the board erred in its finding that employer had "no reason" to object to the use of Dr. Lipman's report until the order on reconsideration issued and in its conclusion that employer could raise the deficiency in Lipman's report for the first time at the hearing before the ALJ. In support of his argument, claimant points to his request for reconsideration of the notice of closure by the department, which included Lipman's and Lindgren's audiograms, Lindgren's concurrence with Lipman's report, and claimant's requests that Lipman's audiogram be used to rate claimant's impairment. Claimant argues that "[employer] did not raise its objection to the use of Dr. Lipman's report to rate claimant's permanent impairment during the reconsideration proceedings, and since that issue could have been raised at that point, the Employer is precluded from raising this issue at hearing." In support of that argument, claimant relies on ORS 656.283(7)² and this court's discussion of exhaustion of administrative remedies in Everett v. SAIF, 179 Or.App. 112, 118, 38 P.3d 952, rev. den., 334 Or. 76, 45 P.3d 450 (2002).³ Employer responds that "[h]aving defined the issues [for reconsideration], the claimant had the obligation to prove his contention by competent evidence" and the failure to "demonstrate the doctor's compliance with the rules" is his alone. Employer adds that claimant, by his argument, is attempting to shift responsibility to "employer who cannot know the result of a hearing dispute until an Order of Reconsideration is issued." The uncontroverted evidence in the record shows that employer received Lipman's report in July 2001. As the board stated, the report did not mention whether claimant had been exposed to any noise during the 14 hours preceding the audiogram. OAR 436-035-0250(3)(b) provides, "Test results [from an audiogram] will be accepted only if they come from a test conducted at least 14 consecutive hours after the worker has been removed from significant exposure to noise." Claimant made his request for reconsideration by the department in March 2002. The department issued its order on reconsideration on May 13, 2002. Contained in the department's order are the following statements and conclusions:

"The parties do not disagree with the impairment findings provided at the time of claim closure. Therefore, no medical arbiter exam was scheduled. * * *

"Claimant's attorney submitted additional medical information consisting of a 6-26-01 audiogram from Derek Lipman, M.D. and Dr. Lindgren's concurrence. This is the most recent hearing loss audiogram and is thus a more accurate evaluation of the worker's condition at the time of claim closure and will be admitted to the record pursuant to ORS 656.268(6).

"* * * * *

"The worker's attorney raises issue with the rating of scheduled impairment. A review of the findings of impairment as taken from the 6-26-01 audiogram provides the following * * * 27.75% for hearing loss in the right ear and 34.00% for hearing loss in the left ear.

"* * * * *

"We find this worker to be entitled to 28.53% scheduled permanent partial disability at this claim closure."

The hearing record before the ALJ was completed in September 2002. At hearing, employer objected for the first time that the department improperly relied on Lipman's report because he did not verify that claimant had been removed from noise exposure at least 14 hours before the audiogram. Thereafter, the ALJ concluded that claimant had not carried his burden of proof regarding the extent of his disability because,

"[u]nder the circumstances, I conclude that Lipman's results are less reliable than Lindgren's. Contrary to claimant's contention, Lindgren's concurrence with Lipman's findings does not cure Lipman's report under the Director's rule, and there is no legal basis for precluding employer from challenging the reliability of Lipman's findings."

On appeal, the board adopted the ALJ's opinion with supplementation. It also rejected claimant's argument that employer should have challenged Lipman's report on the basis of OAR 436-035-0250(3)(b), reasoning that

"In Marvin Wood Products v. Callow, 171 Or.App. 175, 183 (2000), the court explained that, under the current statutory scheme, the hearing before the ALJ is on the reconsideration record made before the Department of Consumer and Business Services and is limited to the issues raised on reconsideration. The record may be supplemented only with a medical arbiter report that was not prepared in time for use in the reconsideration process, ORS 656.268(6)(f), and the issues may be expanded only to consider those `arising out of the reconsideration order itself.' ORS 656.283(7); see also ORS 656.268(8).

"Here, it was not until the Order on Reconsideration issued that the employer first became aware of how the Appellate Review Unit would utilize Dr. Lipman's report. In other words, there was no reason for the employer to object to the use of that report to rate claimant's permanent impairment until the Order on Reconsideration issued. Therefore, the employer appropriately raised the issue of the inadequacy of Dr. Lipman's findings, which `arose out of the reconsideration order itself,' by requesting a hearing."

ORS 183.482(8)(c) provides, "Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit a reasonable person to make that finding." In order for us to conduct a review under ORS 183.482(8)(c), "we must be able to know what the Board found as fact and why it believes that its findings led to the conclusions that it reached. That requires a reasoned opinion based on explicit findings of fact." Armstrong v. Asten-Hill Co., 90 Or.App. 200, 205, 752 P.2d 312 (1988) (footnote omitted); see also Christman v. SAIF, 181 Or.App. 191, 197-98, 45 P.3d 946 (2002)

(holding that, for us to conduct meaningful review of the board's opinion for substantial evidence, the board must explain its conclusions in a manner that is supported by substantial reason).

Here, there is substantial evidence to support the ALJ's finding that Lipman's report was less reliable than Lindgren's report. A reasonable factfinder could conclude that claimant failed to carry his burden of proof regarding the extent of his disability because Lipman did not address the provisions of OAR 436-035-0250(3)(b). However, the board's rejection of claimant's argument that employer should have raised its objection to Lipman's report before the department is a different matter.

We are unable to discern from the board's order whether it rejected claimant's argument-that employer's objection had to be made to the department-on the basis of a conclusion of law, on the basis of a finding of...