Godinez v. SAIF Corp.

346 P.3d 530, 269 Or. App. 578
CourtCourt of Appeals of Oregon
DecidedMarch 11, 2015
Docket1200796; A152746
StatusPublished
Cited by5 cases

This text of 346 P.3d 530 (Godinez v. SAIF Corp.) 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
Godinez v. SAIF Corp., 346 P.3d 530, 269 Or. App. 578 (Or. Ct. App. 2015).

Opinion

DEVORE, J.

Claimant seeks review of an order by the Workers’ Compensation Board (board) affirming an order of an administrative law judge (ALJ). The ALJ upheld an order on reconsideration by the Appellate Review Unit (ARU) of the Workers’ Compensation Division of the Department of Consumer and Business Services (DCBS) rejecting claimant’s request for an award of compensation including an impairment value for a chronic condition significantly limiting claimant’s repetitive use of his left shoulder. On review for legal error, we affirm. See ORS 183.482(8)(a); ORS 656.298(7) (judicial review).

The relevant facts are undisputed. While working as a siding installer, claimant injured his left shoulder when he fell off of an extension ladder. He underwent surgery, and the post-operative diagnosis was “traumatic instability.” A work capacity evaluation noted reduced motion and strength in the shoulder and, based on those findings, limited claimant’s left arm overhead reaching to a weight limit of 15 pounds and limited siding installation to below head level. The evaluation stated that claimant could not meet the demands of his regular job. An independent medical examination, performed the same day, resulted in similar findings, except for somewhat greater shoulder motion. The attending physician, Dr. Carrie Ware, concurred in both exams and noted that her conclusions regarding range of motion were more consistent with the work capacity evaluation.

SAIF issued a notice of closure with findings based on the work capacity evaluation. The accepted conditions for the left-shoulder injury included anterior dislocation, non-displaced glenoid rim fracture, type II SLAP lesion, and Hills-Sachs lesion. Impairment values were given for range of motion and strength loss, but no chronic condition impairment value was awarded.

Claimant requested reconsideration of the notice by the ARU. In the request, claimant included a clarification report from Ware. Ware was asked, “Does the patient have a significant limitation in repetitive use [of] his left arm above chest level?” Ware answered yes, and wrote, “Should not lift materials exceeding 20 lbs above shoulder level with [580]*580left arm.” The parties did not dispute Ware’s impairment findings.

In the order on reconsideration, the ARU affirmed the whole person impairment value and increased the work disability to 21 percent. The ARU, however, did not award the five percent “chronic condition impairment value” provided by OAR 436-035-0019(1). Under that rule, a claimant is entitled to a chronic condition impairment value “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 listed body part].” OAR 436-035-0019(1) (emphasis added). In its order, the ARU determined:

“The attending physician clarified the worker was limited in repetitive use over the shoulder only. Chronic condition impairment must include the worker’s overall conditions/motions and not just one motion. Accordingly, the clarification does not meet the minimum threshold for rating chronic condition impairment under OAR 436-035-0019(1) and OAR 436-035-0007(13).”

Claimant requested a hearing before an ALJ, who affirmed the order on reconsideration. The ALJ determined that Ware’s explanation did not “satisfy the rule’s requirement of a significant limitation in repetitive use. The inability to lift more than 20 pounds above shoulder level is not the same thing as a significant limitation in repetitive use of the shoulder.”

Claimant appealed from the ALJ’s order to the board. The board affirmed the order. The board distinguished claimant’s case from Lynette M. Miller, 58 Van Natta 2881 (2006), where it had determined that a chronic condition impairment value was appropriate where the medical arbiter had concluded that the claimant was “significantly limited in her ability to repetitively use her left shoulder to lift and transfer patients/weight due to her accepted diagnosis of tendonitis of that shoulder.” Id. at 2884. The board explained that, in Miller, it interpreted the arbiter’s additional explanation about the use of the claimant’s left shoulder as an example of the limitation on the body part, not the only limitation on the shoulder’s use. By contrast, the board [581]*581explained, Ware “specifically qualified the limitation on repetitive use” to lifting more than 20 pounds above shoulder level. The board concluded, “[b]ecause the limitation is qualified in this manner, we find it insufficient to establish entitlement to a ‘chronic condition’ impairment value.”

Claimant now petitions for judicial review in this court and argues that both the ARU and the board have misinterpreted OAR 436-035-0007. Claimant contends that no deference is owed to the ARU’s interpretation of the chronic condition impairment rule because the ARU did not “expressly define the terms of the administrative rule.” Claimant also notes that we are not obligated to defer to the board’s interpretation of the rule — which described claimant’s limitation as “qualified” — because the board is not part of the Workers’ Compensation Division, the agency that promulgated the rule. Therefore, claimant asks us to interpret the rule without deference and to apply the plain and ordinary meaning of the rule’s terms. Under such an interpretation, claimant argues, a chronic condition impairment value should be awarded where there is “a noticeable limit on using a ‘body part’ over and over again.”

SAIF argues that, because the ARU is the “authorized representative” of the Director of DCBS, its interpretation of the rule is entitled to deference.1 SAIF reasons that the ARU interpreted the rule in the process of applying it to claimant’s case, and contends that we should uphold its “plausible interpretation” of the rule, given that it is not “inconsistent with the wording of the rule itself, or with the rule’s context, or with any other source of law[.]” Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132, 142, 881 P2d 119 (1994).

As explained below, we agree that the ARU did interpret DCBS’s chronic-condition rule in the course of [582]*582applying it to claimant’s case, and, because its interpretation is plausible, it is entitled to deference. ARU’s interpretation is not inconsistent with the wording of the rule or any other source of law. We conclude that the board applied the ARU’s interpretation in its order and that its application was supported by substantial evidence.

Agencies are permitted to “determine whether the standard established in a rule has been met in a particular instance by interpreting the rule in the course of applying it.” DeLeon, Inc. v. DHS, 220 Or App 542, 548, 188 P3d 354 (2008). When that is the case, we defer to the agency’s plausible interpretation, “including an interpretation made in the course of applying the rule[.]” Id. Here, the ARU was asked to determine whether claimant had met the standard for a chronic condition impairment award as set out in OAR 436-035-0019.

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Cite This Page — Counsel Stack

Bluebook (online)
346 P.3d 530, 269 Or. App. 578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godinez-v-saif-corp-orctapp-2015.