Gonzalez v. Saif Corp.

51 P.3d 676, 183 Or. App. 183, 2002 Ore. App. LEXIS 1213
CourtCourt of Appeals of Oregon
DecidedAugust 7, 2002
Docket00-04672; A114224
StatusPublished

This text of 51 P.3d 676 (Gonzalez 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
Gonzalez v. Saif Corp., 51 P.3d 676, 183 Or. App. 183, 2002 Ore. App. LEXIS 1213 (Or. Ct. App. 2002).

Opinion

EDMONDS, P. J.

Claimant seeks judicial review of an order of the Workers’ Compensation Board (board). He contends that the board erred in holding that he failed to prove “chronic impairment” under OAR 436-035-0010(5), which would have entitled him to an additional permanent partial disability award. We affirm.

Claimant is a farm worker whose right arm was seriously injured when it became caught in some farm machinery. Claimant filed a workers’ compensation claim in January 1998, and it was accepted by SAIF, employer’s insurer. After surgery and months of missed work, claimant resumed modified employment with employer. He was determined to be medically stationary in September 1999. Claimant’s treating physician, Dr. Casey, performed a closing examination. In his report of the examination, Casey concluded that “[claimant] has significant loss of grip strength on the right side, which is probably permanent,” and that he “is to continue to do his regular work as best he can if his strength allows him,” but that “he does farm work and there is much he can do, but heavy work is not one of them.”

SAIF sought clarification from Casey about his conclusions in the closing examination report. Casey responded that he believed that “the reason for [claimant’s] loss of strength is his injury requiring significant surgery,” that the loss of strength was “valid,” and that “the nerve that supplies these muscles was not significantly damaged” but “the body of the muscle itself was damaged.” SAIF closed claimant’s claim in December 1999 and awarded 14 percent scheduled impairment of the right arm. In February 2000, claimant sought reconsideration of the impairment award from the Appellate Review Unit, arguing in part that he had established an entitlement to an award for a chronic condition under OAR 436-035-0010(5), based on his loss of ability to perform repetitive heavy manual labor. Claimant had an opinion from Casey, in which Casey responded to two questions. The first question asked:

[186]*186“If [claimant] is generally unable to perform heavy work, would you agree that [he] is also unable to perform repetitive heavy work such as lifting and carrying, pushing or pulling with the right arm, and will be able to perform that kind of activity only with the left arm on a repetitive basis?”

Casey did not answer “yes” or “no” to the questions. Instead, he wrote, “[Claimant] can do pushing & pulling & lifting with right up to 25#.” The second question asked:

“Considering that [claimant] is employed as a farm laborer for which heavy lifting is a regular component of the employment, and that [claimant]’s level of education and. related factors make it unlikely that he will readily obtain employment outside the area of manual labor, would you consider this loss to be a significant loss?” (Emphasis added.)

Casey answered “yes” to that question. Casey’s responses were admitted to the record as part of the hearing on reconsideration.

On reconsideration, the Appellate Review Unit issued an order that increased claimant’s scheduled permanent partial disability to 20 percent but disallowed any award for loss of repetitive use under OAR 436-035-0010(5). The order provides, “Dr. Casey did not clearly state the worker was significantly limited in his ability to use his right forearm. Therefore, the worker is not entitled to a rating of chronic condition for his right wrists/forearm.” Claimant sought review of the award before the Hearings Division.

After holding a hearing on the issue, the administrative law judge (AU) added 6 percent to claimant’s permanent partial disability award for a total scheduled permanent partial disability award of 26 percent. As to the issue of an award for repetitive use, the ALJ ruled,

“Claimant argues that, by stating claimant could not push, pull or lift over 25 pounds, [Dr. Casey was asserting that] he also cannot repetitively push, pull or lift above that weight.
“Had Dr. Casey wanted to convey that opinion, he could have checked the box in the affirmative. Further, it would be impermissible to infer that Dr. Casey intended to preclude repetitive use of the forearm when he was asked [187]*187about use of the arm. * * * The arm and forearm are not synonymous when talking about loss of repetitive use. Dr. Casey did not indicate claimant had any loss of use of the arm, as opposed to forearm. The appellate reviewer correctly concluded that the medical opinion was insufficient.
“Finally, Dr. Casey’s agreement that claimant has a significant loss taking into consideration his education (farm laborer) and related factors (non English speaking), does not bootstrap into a loss of repetitive use. The loss is significant; it is not repetitive.” (Emphasis in original; citations omitted.)

Claimant appealed to the board, which adopted and affirmed the ALJ’s order with the following addition:

“Claimant contends that, based on a response from Dr. Casey, his attending physician, he is entitled to a ‘chronic’ condition award. We agree with the ALJ that claimant failed to establish entitlement to a ‘chronic’ condition award.
* * * *
“* * * [W]e do not find that Dr. Casey’s opinion establishes entitlement to an award for chronic condition impairment. Although Dr. Casey’s response to claimant’s first question might indicate some limitation in repetitive use of the right arm, it does not indicate ‘significant’ limitation, as required under OAR. 436-035-0010(5). In this regard, we have found that indications of ‘some limitation’ [are] insufficient to meet the requirement of being ‘significantly limited in the repetitive use’ of a body part under OAR 436-035-0010(5). See Daralynn Nevett, 52 Van Natta 1856 (2000); Carl H. Kimble, 52 Van Natta 1549 (2000); Gregory P. Hublitz, 52 Van Natta 673 (2000); Lorraine F. Fortado, 52 Van Natta 446 (2000).
“In addition, claimant’s second question essentially asked Dr. Casey to consider various social and vocational factors in rendering an opinion as to whether claimant’s loss was ‘significant.’ * * * However, social and vocational factors are not considered in rating scheduled permanent disability, which is limited to the permanent loss of use or function of a body part due to the industrial injury. ORS 656.214(2); OAR 436-035-0010(2). Consistent with this, OAR 436-035-0010(5) only applies when a preponderance of [188]*188medical opinion establishes that, due to a chronic and permanent medical condition, the worker is significantly limited in the repetitive use of a body part. Thus, the rule is limited to the determination of a physical impairment, i.e., loss of repetitive use of a body part, and does not extend to consideration of social and vocational factors.”

On review to this court, claimant contends that “the board erred as a matter of law when it concluded that a treating physician is precluded from considering social and vocational factors in determining whether a loss of the ability to repetitively use a scheduled body part is a significant loss.” His argument depends on the meaning of the words “significantly limited” in OAR 436-035-0010(5).

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Related

George v. Myers
10 P.3d 265 (Court of Appeals of Oregon, 2000)
Buss v. SAIF Corp.
50 P.3d 253 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
51 P.3d 676, 183 Or. App. 183, 2002 Ore. App. LEXIS 1213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonzalez-v-saif-corp-orctapp-2002.