McDermott v. SAIF Corp.

398 P.3d 964, 286 Or. App. 406, 2017 WL 2793965, 2017 Ore. App. LEXIS 825
CourtCourt of Appeals of Oregon
DecidedJune 28, 2017
Docket1403683; A160016
StatusPublished
Cited by12 cases

This text of 398 P.3d 964 (McDermott 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
McDermott v. SAIF Corp., 398 P.3d 964, 286 Or. App. 406, 2017 WL 2793965, 2017 Ore. App. LEXIS 825 (Or. Ct. App. 2017).

Opinions

SERCOMBE, J.

Claimant seeks review of an order of the Workers’ Compensation Board upholding an award of permanent partial disability benefits by employer’s insurer, SAIF Corporation, for claimant’s right knee injury claim. The award apportioned claimant’s benefits under OAR 436-035-0013 (2013)1 so as to exclude compensation for his preexisting arthritic condition. In claimant’s view, under ORS 656.268(1), as interpreted by the Supreme Court in Schleiss v. SAIF, 354 Or 637, 317 P3d 244 (2013), apportionment to exclude an award for impairment due to a preexisting condition is permitted only when the preexisting condition has been accepted as a part of a combined condition claim and then denied.2 SAIF argues that the board correctly concluded that apportionment was appropriate under ORS 656.214 and the administrative rules for rating disability in OAR chapter 436, division 35. We review the board’s order for legal error, ORS 656.298(7) (providing that review of board order shall be as provided in ORS 183.482); ORS 183.482(8)(a) (providing for review for legal error), conclude that the board did not err, and affirm.

Claimant suffered a compensable injury to his right knee that SAIF accepted as a strain and traumatic injury to the articular surface of the knee joint. During a surgical debridement, Dr. Hamilton observed preexisting arthritic changes. Hamilton opined that the work injury had combined with the preexisting arthritis to cause a combined condition. It is undisputed that claimant’s arthritis is a [409]*409preexisting condition as defined in ORS 656.005(24); claimant did not seek to have the arthritis accepted as a part of a combined condition, and SAIF did not accept a combined condition.

In the rating of claimant’s disability, Hamilton attributed 40 percent of claimant’s impairment to the accepted conditions and 60 percent to claimant’s preexisting arthritic condition. SAIF closed the claim with an award of four percent “whole person impairment,” apportioned as outlined by Hamilton. An administrative law judge and the board determined that apportionment was appropriate under OAR 436-035-0013 and upheld the award. Claimant seeks judicial review, contending that, under the pertinent statutes and the Supreme Court’s opinion in Schleiss, the apportionment of impairment allowed by the rule was not permissible.

We begin our analysis with the text and context of the relevant statutes and rules. An injured worker who suffers permanent disability as a result of a compensable injury or occupational disease is entitled to benefits for impairment. ORS 656.214(2)(a) provides that, “[w]hen permanent partial disability results from a compensable injury or occupational disease, benefits shall be awarded [when the worker has been released to regular work] *** for impairment only.” ORS 656.214(l)(c)(A) defines “permanent partial disability” to mean “[permanent impairment resulting from the compensable industrial injury or occupational disease.” ORS 656.214(l)(a) defines “impairment”:

“‘Impairment’ means the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease determined in accordance with the standards provided in ORS 656.726, expressed as a percentage of the whole person.”

Thus, ORS 656.214 authorizes permanent partial disability benefits only for impairment that “results from” or that is “due to the compensable industrial injury.” “Compensable injury” is defined by ORS 656.005(7)(a)(B) to mean “an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death *** subject to the following limitation[]”:

[410]*410“If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition.”

The director of the Department of Consumer and Business Services has interpreted and applied ORS 656.214(1) through administrative rules that preclude an award of permanent partial disability for the portion of an impairment that is not due to or resulting from the compensable industrial injury but, instead, is due to or resulting from some other cause. Those rules were adopted by the director under his general authority in ORS 656.726(4)(a) to “[m]ake and declare all rules * * * which are reasonably required in the performance of the director’s duties,” and, specifically, to implement ORS 656.726(4)(f), which delegates to the director the authority to determine the meaning of “impairment *** due to the compensable industrial injury.” ORS 656.726(4)(f) delegates to the director the authority to

“[p]rovide standards for the evaluation of disabilities. The following provisions apply to the standards:
“(A) The criterion for evaluation of a permanent impairment under ORS 656.214 is the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease.”

OAR chapter 436, division 35, sets out the director’s standards for evaluation of a permanent impairment under ORS 656.214 “due to the compensable industrial injury.” At the relevant time, OAR 436-035-0007 provided:

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Related

Robinette v. SAIF
475 P.3d 470 (Court of Appeals of Oregon, 2020)
Johnson v. SAIF
475 P.3d 465 (Court of Appeals of Oregon, 2020)
McDermott v. SAIF
460 P.3d 126 (Court of Appeals of Oregon, 2020)
Caren v. Providence Health Sys. Or. (In re Caren)
446 P.3d 67 (Oregon Supreme Court, 2019)
Griffin v. Dish Network Servs. (In re Comp. of Griffin)
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Netherton v. Aerotek Inc.-Allegis Grp. Inc. (In re Netherton)
424 P.3d 764 (Court of Appeals of Oregon, 2018)
Nunn v. Lti, Inc. (In re Comp. of Nunn)
417 P.3d 473 (Court of Appeals of Oregon, 2018)
Eaken v. SAIF Corp. (In re Eaken)
415 P.3d 1154 (Court of Appeals of Oregon, 2018)
Johnson v. Saif Corp. (In re Comp. of Johnson)
418 P.3d 27 (Court of Appeals of Oregon, 2018)
Stryker v. SAIF Corp.
401 P.3d 797 (Court of Appeals of Oregon, 2017)
Salvador v. SAIF Corp.
398 P.3d 485 (Court of Appeals of Oregon, 2017)
Yekel v. SAIF Corp.
398 P.3d 463 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
398 P.3d 964, 286 Or. App. 406, 2017 WL 2793965, 2017 Ore. App. LEXIS 825, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdermott-v-saif-corp-orctapp-2017.