Gevers v. Roadrunner Construction

965 P.2d 1047, 156 Or. App. 168, 1998 Ore. App. LEXIS 1554
CourtCourt of Appeals of Oregon
DecidedSeptember 30, 1998
DocketWCB No. 95-10971; CA A99032
StatusPublished

This text of 965 P.2d 1047 (Gevers v. Roadrunner Construction) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gevers v. Roadrunner Construction, 965 P.2d 1047, 156 Or. App. 168, 1998 Ore. App. LEXIS 1554 (Or. Ct. App. 1998).

Opinion

RIGGS, P. J. pro tempore.

Claimant challenges an order of the Workers’ Compensation Board (the board) denying his request for additional unscheduled permanent partial disability (PPD) for aggravation of his existing shoulder condition. We review for errors of law and substantial evidence, ORS 656.298(7); ORS 183.482(7) and (8), and reverse and remand.

We summarize the relevant facts from the board’s order. Claimant suffered compensable injuries to both shoulders in a 1988 fall from a scaffold. Following multiple surgeries, claimant was declared medically stationary in 1990. A 1992 determination order awarded him 74 percent unscheduled PPD for his shoulders and 19 percent scheduled PPD for damage to his left arm.

In December 1992, insurer accepted a claim for aggravation of claimant’s left shoulder condition. Claimant had two additional surgeries on that shoulder and again was declared medically stationary in November 1994. A determination award, issued in April 1995, awarded claimant temporary disability but no additional PPD for his left shoulder.

Claimant requested reconsideration and examination by a medical arbiter panel, as provided in ORS 656.268(7)(b). The panel issued the report of its examination of claimant on September 8, 1995. The panel found that claimant displayed “a marked decreased ability to repetitively use the left shoulder”1 and further noted that claimant had suffered a significant loss of strength in his left shoulder. The report states: “The decreased strength is due to perijoint fibrosis and not to any one specific nerve muscle or tendon unit.”2

[171]*171Based upon that report, the department issued an order on reconsideration affirming the determination order. Claimant requested a hearing, and, on February 20,1996, an administrative law judge (ALJ) issued an order affirming the order on reconsideration. Claimant appealed the AU’s order to the board, and on August 1, 1997, the board issued an order on review affirming that order.

In rejecting claimant’s request for additional PPD, the board focused on the medical arbiters’ finding that claimant’s loss of shoulder strength “was not due to any one specific nerve muscle or tendon unit.” While acknowledging claimant’s “decreased strength” and “increase in impairment,” the board concluded that claimant’s inability to attribute his loss of strength to damage to a particular nerve made his condition unratable. The board’s order on review states, in pertinent part:

“ [W] e are unwilling to infer an injury to each named peripheral nerve * * * (or to any specific peripheral nerve that innervates the muscles of the left shoulder) in the absence of supporting medical evidence. * * * Here, the record establishes only that claimant’s decreased strength is due to ‘perijoint fibrosis.’ We cannot logically infer from the arbiters’ report any injury to a specific named peripheral nerve or any injury to a specific nerve muscle or tendon unit. Consequently, we conclude that claimant’s decreased left shoulder strength is not ratable under the applicable standards.”

Claimant argued to the AU and to the board that his condition was ratable under either of the two board rules addressing loss of shoulder strength that were in effect at the time, former OAR 436-35-350(3) and (5) (1993).* *3 As noted [172]*172above, the board’s order contains a finding that claimant has not suffered damage to a specific shoulder nerve. On review, claimant does not assign error to that finding, although subsection (3) requires a showing of injury to a “specific named nerve.” However, he contends that the board erred in rejecting his claim under former OAR 436-35-350(5), because, in his view, that subsection allows recovery even absent a showing of damage to a specific nerve. Claimant argues that the board incorrectly addressed his claim under subsection (5) together with his claim under subsection (3) and erroneously rejected both on the ground that he had failed to prove damage to a particular nerve. Respondents counter that the board’s ruling was correct because subsection (5), like subsection (3), requires proof of nerve damage.

We agree with claimant that former OAR 436-35-350(5) does not require a showing of nerve damage for a loss of shoulder strength to be ratable.* **4 In interpreting administrative rules, we apply the same rules that apply to the construction of statutes. Perlenfein and Perlenfein, 316 Or 16, 20, 848 P2d 604 (1993); Liberty Northwest Ins. Corp. v. Jensen, 150 Or App 548, 552, 946 P2d 689 (1997). Our first level of inquiry into the meaning of statutes and rules is examination of text and context. PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993). Here, the text of subsection (5) makes no mention of damage to specific nerves. Rather, the subsection refers to “loss of strength due to muscle loss or damage to the musculotendinous unit” and states that such loss is to be rated “as if the nerve supplying that muscle or muscle group were impaired.” (Emphasis added.) Rating loss of strength due to muscle loss as if a nerve [173]*173were damaged demonstrates that subsection (5) was intended to apply in cases where the nerve is not in fact damaged. The text of the rule unambiguously refers to muscle and tendon-related losses of strength and offers no support for respondents’ contention that claimant must show damage to a specific nerve for his condition to be ratable under subsection (5).

Statutory context also supports claimant’s reading of subsection (5). Our inquiry into context includes review of related rules or statutes. PGE, 317 Or at 611. Here, we need look no further than former OAR 436-35-350(3) to find support for claimant’s position. That subsection specifically refers to claims arising from “injuries to a unilateral specific named nerve with resultant loss of strength.” Taken together with subsection (5), that rule establishes a framework for analyzing loss of shoulder strength: Losses related to nerve injury are rated under subsection (3), while losses related to muscle loss or disruption of a musculotendinous unit are rated under subsection (5). Respondents’ contention that subsection (5) requires a showing of damage to a specific nerve would turn that subsection into a virtual duplicate of subsection (3). Respondents have identified no factual situation in which subsection (5) would have independent effect under their reading, and we can think of none.

The text and context of former OAR 436-35-350(5) demonstrate that a claimant need not show damage to a particular nerve for loss of shoulder strength to be ratable. The board appears to have rejected claimant’s request for additional PPD under subsection (5) on the basis of his failure to show such damage, and, accordingly, the board erred.5 We [174]*174remand to the board with instructions to consider whether claimant’s decrease in shoulder strength is due to “muscle loss or disruption of the musculotendinous unit” and, if so, to value the loss of strength under

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Bluebook (online)
965 P.2d 1047, 156 Or. App. 168, 1998 Ore. App. LEXIS 1554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gevers-v-roadrunner-construction-orctapp-1998.