Trujillo v. Pacific Safety Supply

• Decision Date: 08 May 2002
• Citation: 181 Or. App. 302,45 P.3d 1017
• Parties: In the Matter of the Compensation of Consuelo Trujillo, Claimant. Consuelo TRUJILLO, Petitioner, v. PACIFIC SAFETY SUPPLY and SAIF Corporation, Respondents.
• Court: Oregon Court of Appeals

45 P.3d 1017

181 Or. App. 302

In the Matter of the Compensation of Consuelo Trujillo, Claimant.

Consuelo TRUJILLO, Petitioner, v. PACIFIC SAFETY SUPPLY and SAIF Corporation, Respondents.

96-10056; A99410.

Court of Appeals of Oregon, En Banc.

Submitted on Remand August 7, 2001.

Resubmitted February 6, 2002.

Decided May 8, 2002.

Max Rae, Salem, for petitioner.

David Runner, Salem, for respondents.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER, and SCHUMAN, Judges.

Resubmitted En Banc February 6, 2002.

LANDAU, J.

The Oregon Supreme Court remanded this workers' compensation case to us for reconsideration in light of its decision in Koskela v. Willamette Industries, Inc., 331 Or. 362, 15 P.3d 548 (2000). In our original opinion, Trujillo v. Pacific Safety Supply, 159 Or. App. 350, 978 P.2d 1037 (1999), we reversed and remanded for reconsideration the Workers' Compensation Board's (board) order awarding claimant permanent partial disability. We rejected claimant's contention that he had a constitutional right to testify at an oral hearing concerning the rating of his base functional capacity (BFC), but we concluded that reversal and remand were required because the board's order included inconsistent findings concerning the rating of claimant's BFC. On remand, and after reconsideration in light of Koskela, we adhere to our conclusion that claimant does not have a constitutional right to testify at an oral hearing concerning the rating of his BFC. We therefore reverse and remand for reconsideration on the grounds stated in our original opinion.

The relevant facts are few and undisputed. Claimant compensably injured his neck, shoulders, and chest. Employer accepted the claim and, after claimant became medically stationary, issued a notice of closure awarding 16 percent unscheduled permanent partial disability. A worksheet attached to the notice indicated that claimant's BFC and residual functional capacity (RFC) were light. Claimant requested reconsideration, and the reconsideration order upheld the notice of closure. Claimant requested a hearing. At the hearing, he requested an opportunity to testify concerning the rating of his BFC. The administrative law judge declined the request, concluding that ORS 656.283(7) precludes the admission of evidence that was not in the reconsideration record, and the board affirmed. The board ultimately awarded claimant 21 percent disability, but claimant petitioned for judicial review, seeking additional compensation. He advanced two assignments on review. First, he argued that the board erred in failing to permit him to testify at the hearing concerning the rating of his BFC. According to claimant, he has a right to do so, guaranteed by the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Second, he argued that the board's findings concerning his BFC were inconsistent. We rejected the first assignment, but we agreed with the second. Trujillo, 159 Or.App. at 352,978 P.2d 1037.

Claimant petitioned for review. While the petition was pending, the Oregon Supreme Court issued its opinion in Koskela. In that case, the court held that, notwithstanding ORS 656.283(7), a claimant seeking permanent total disability benefits has a constitutional right to an oral evidentiary hearing. The court reached that conclusion by applying the three-part analysis of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The court held in Koskela that: (1) a claimant whose claim has been accepted has a significant property interest in receiving permanent total disability benefits, 331 Or. at 378-79, 15 P.3d 548; (2) because a worker seeking permanent total disability benefits must establish willingness to work and reasonable efforts to find suitable employment, and because those elements "require judgment about the worker's credibility and veracity," the probable value of an oral hearing is substantial, id. at 381, 15 P.3d 548; and (3) the additional cost of providing a hearing is minimal compared to the magnitude of the private interest at stake, id. at 382, 15 P.3d 548.

It now falls to us to determine whether that decision requires a different result in this case. Following the lead of the Oregon Supreme Court in Koskela, we examine the procedure in this case in light of the three Mathews factors.

We begin with the nature of claimant's interest. At issue in this case is the extent of claimant's entitlement to permanent partial disability benefits, determined by calculation of, among other things, his BFC. As we explained in SAIF v. Fister, 177 Or.App. 13, 15, 33 P.3d 320 (2001):

"The amount of compensation that an injured worker receives for a permanent injury depends on the extent of the disability (called `permanent partial disability,' or PPD) caused by the injury. ORS 656.214(5). The extent of disability, expressed as a percentage (e.g., `14 percent PPD'), depends in turn on the seriousness of the injury `as modified by factors of age, education and adaptability to perform a given job.' ORS 656.726(4)(f)(A). The Department of Consumer and Business Services provides formulas for expressing these modifying factors as numbers. A high number adds to the extent of disability, which, in turn, adds to the injured worker's compensation.

"The modifying factor at issue in this case is `adaptability.' Adaptability, under the Department's rules, is determined by comparing the worker's ability to perform work before and after the injury or, in the language of the rules, by comparing the worker's `base functional capacity' (BFC) with his or her `residual functional capacity' (RFC). Former OAR 436-35-310(2) (1994). These statutes and rules reflect the proposition that a worker whose injury causes a significant loss of working capacity deserves more compensation than a worker whose injury inflicts minimal harm to working capacity[.]"

(Footnote omitted.)

A worker who sustains partial disability remains able to work; indeed, a partially disabled worker has the right either to return to work with the employer at injury, ORS 656.415, or to obtain vocational assistance or training if he or she is unable to find suitable new employment, ORS 656.340(6). A worker who sustains partial disability also is entitled to reasonable and necessary medical services, ORS 656.245, and to a reopening of the claim for additional benefits if the compensable condition worsens or if new medical conditions develop as a result of the compensable condition. ORS 656.273(1). Thus, the purpose and effect of an award of permanent partial disability is different from the award of permanent total disability that was at issue in Koskela. As the Supreme Court noted in that case, an award of permanent total disability implicates a significant property interest because its purpose is to provide a form of lifetime total wage replacement. According to the court, the importance of economic self-sufficiency is "self-evident." Koskela, 331 Or. at 379,15 P.3d 548. In the case of permanent partial disability, the issue of economic self-sufficiency is not so directly implicated. The benefit is usually paid as a one-time lump sum, rather than as a monthly payment over the lifetime of the worker. ORS 656.214.

We turn to the risk of erroneous decisions and the probable value of additional safeguards. In Mathews, the United States Supreme Court observed that a determination of when a social security benefit claimant's disability ceases is an issue of medical proof that is generally determined by reference to routine, standard, and unbiased medical reports. As such, the Court stated, issues of credibility and veracity are rarely involved and thus the risk of error and probable value of the additional safeguard of requiring an oral hearing are slight. Mathews, 424 U.S. at 344, 96 S.Ct. 893. Similarly, in Logsdon v. SAIF Corp., 181 Or.App. 317, 323-24, 45 P.3d 990, 993-994, we held that a determination of a workers' compensation claimant's medically stationary date is an issue of medical proof that does not routinely implicate credibility and veracity concerns. In contrast, in Koskela, the Oregon Supreme Court held that a determination of a claimant's entitlement to permanent total disability benefits largely turns on the worker's credibility concerning his or her subjective willingness to work and reasonable efforts to find suitable employment. Because issues of credibility and veracity are inherent in the decision-making process, the court held, the risk of error through failing to permit a claimant to testify at an oral hearing is great. Koskela, 331 Or. at 380, 15 P.3d 548.

In our view, the calculation of a claimant's BFC is much more like the matters at issue in Mathews and Logsdon than those at issue in Koskela. Under applicable administrative rules, the principal method of determining a BFC is by reference to the Dictionary of Occupational Titles (DOT) code. OAR 436-035-0310(3)(a). In some cases, it also may be determined from a physical capacity evaluation performed by medical experts before the injury or disease or from job descriptions concerning the nature of the worker's duties at the time of the injury. In this case, the board determined claimant's BFC by reference to the DOT code. Although it is conceivable that, in at least some cases, a claimant could take issue with the accuracy of a job description, the resolution of such a dispute does not inherently involve matters of credibility and veracity. Moreover, as the United States Supreme Court observed in Mathews, "procedural due process rules are shaped by the risk of error inherent in the truthfinding process as applied to the generality of cases, not the rare exceptions." 424 U.S. at 344, 96 S.Ct. 893.

Finally, concerning the state's interests and the costs of added procedural safeguards, we note that, even assuming for the sake of argument that, on a per-case basis,...