Spurger v. SAIF Corp.

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: ARMSTRONG, J.
• Citation: Spurger v. SAIF Corp., 292 Or.App. 227, 423 P.3d 121 (Or. App. 2018)
• Decision Date: 06 June 2018
• Docket Number: A160697
• Parties: In the Matter of the Compensation of Angelica M. Spurger, Claimant, Angelica M. SPURGER, Petitioner, v. SAIF CORPORATION and Pacific Health and Rehabilitation, Respondents.

292 Or.App. 227

423 P.3d 121

In the Matter of the Compensation of Angelica M. Spurger, Claimant,

Angelica M. SPURGER, Petitioner,

v.SAIF CORPORATION and Pacific Health and Rehabilitation, Respondents.

A160697

Court of Appeals of Oregon.

Argued and submitted March 7, 2017.

June 6, 2018

Donald M. Hooten argued the cause and filed the briefs for petitioner.

David L. Runner, Salem, argued the cause and filed the brief for respondents.

Before DeHoog, Presiding Judge, and Armstrong, Judge, and Aoyagi, Judge.^*

ARMSTRONG, J.

In this workers’ compensation case, claimant challenges the Workers’ Compensation Board’s determination that she is not entitled to an award of five percent impairment for a chronic and permanent medical condition, as defined in OAR 436-035-0019(1)(i). This is the second time that we have considered a board order rejecting claimant’s request for an award for chronic condition impairment. See Spurger v. SAIF , 266 Or. App. 183, 337 P.3d 883 (2014). We conclude that the board’s order is not supported by substantial reason, and we therefore reverse and remand the order.

Claimant works for employer as a certified medication aid (CMA). Claimant’s job overseeing distribution of medication for approximately 50 patients per shift has a "light" classification, and involves continuously being on her feet, frequently changing positions, walking, and standing. Claimant’s job also requires squatting to reach a medication drawer, occasional sitting, repositioning a patient, and helping an RN by lifting or holding a limb.

Claimant suffered an injury at work while moving a bed. SAIF accepted a claim for lumbar strain, left hip strain, and trochanteric bursitis. Within a week or so of the injury, claimant was released to modified work at her regular hours and wages. At the time of claim closure, claimant was examined by Dr. Wong at SAIF’s request. In rating claimant’s limitation in repetitive use relating to the left hip, Wong had a choice of "no limitation," "some limitation," or "significant limitation," and he checked the box indicating that claimant had "some limitation." Claimant’s treating physician concurred in that opinion. Given further information by claimant’s attorney as to what constitutes a "significant limitation," Wong maintained his opinion that claimant has "some limitation." However, Wong specifically concurred in claimant’s counsel’s statement that claimant would have "difficulty" with "repetitive squatting, walking long distances, and static standing for long periods of time." He released claimant for work, recommending that she be limited to "light/sedentary" work and that she work two days on, one day off, two days on. Claimant’s treating physician concurred in Wong’s opinion and recommendations.

OAR 436-035-0019(1)(i) defines "chronic condition impairment":

"A worker is entitled to a 5% chronic condition impairment value for each applicable body part, 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 [a list of body parts including the hip]."

Claimant sought a rating for chronic condition impairment for the hip, but SAIF rejected it. The claim was closed with an award of one percent whole person impairment and 17 percent work disability, but no rating for chronic condition impairment. Claimant requested reconsideration. The board ultimately upheld the award. The board explained that, considering the medical evidence as a whole, the evidence did not support the conclusion that claimant had significant limitations so as to support a rating for chronic condition impairment. The board rejected claimant’s contention that the evidence that claimant has "some limitation" or will have "difficulty" performing certain movements necessarily establishes a significant limitation on repetitive use.

In our first opinion on judicial review in this case, we concluded that the board’s order had not provided an adequate explanation or substantial reason for its conclusion that "difficulty" repetitively performing certain tasks does not establish significant impairment for purposes of OAR 436-035-0019(1)(i). We remanded the case for the board to further explain its reasoning. Spurger , 266 Or. App. at 195, 337 P.3d 883.

Pending remand, we issued our opinion in Godinez v. SAIF , 269 Or. App. 578, 346 P.3d 530 (2015). The worker in that case was restricted from repetitively lifting 20 pounds above shoulder level, and sought to overturn the board’s determination, in affirming the Appellate Review Unit (ARU), that the limitation was not sufficient for a chronic condition impairment award under OAR 436-035-0019. Id. at 579, 346 P.3d 530. Under a previous administrative rule, the chronic condition impairment rating had been interpreted to apply to a partial loss of ability to use a body part. Id . at 584, 346 P.3d 530. The ARU determined that under OAR 436-035-0019, chronic condition impairment requires a limitation on the worker’s "overall conditions/motions and not just one motion." We affirmed the board’s order upholding that interpretation. Citing the rulemaking history of OAR 436-035-0019, which we reasoned indicated an intention to require a higher threshold for receiving a chronic condition impairment award—more than a partial loss of ability to use a body part—we held that the ARU’s interpretation was plausible and entitled to deference. Id. at 581, 346 P.3d 530.

Godinez did not deal with the precise issue presented here as to what constitutes a "significant" limitation. But, in concluding that the ARU’s interpretation of the rule was plausible, our opinion did refer to dictionary definitions of "significant":

"The definition of ‘significant’ includes ‘having meaning’ and ‘having or likely to have influence or effect’; it is

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