SAIF Corp. v. Danboise

937 P.2d 127, 147 Or. App. 550, 1997 Ore. App. LEXIS 522

Opinions

RIGGS, J.

Employer seeks review of an order of the Workers’ Compensation Board affirming the award of permanent partial disability to claimant. Employer contends that the Board applied an incorrect standard of proof in evaluating the claim. We conclude that the Board applied the correct standard, and that under that standard, substantial evidence supports the Board’s findings concerning the extent of claimant’s impairment. Accordingly, we affirm the Board.

Claimant injured his neck in September 1993, while working for employer. Employer accepted the claim and, ultimately, the Board affirmed the administrative law judge’s award of 21 percent unscheduled permanent partial disability.

The record contains ample evidence to support the Board’s findings that claimant sustained a cervical injury on the job, that he had no prior physical limitations before the accident and that he has cervical impairment due to the injury. The medical arbiters found diminished cervical range of motion; although they did not recite the words “due to the compensable injury” in describing the source of claimant’s impairment, their report supports a finding that claimant had impairment due to the compensable injury.

Employer’s only assignment of error is that the Board applied an incorrect standard of proof. In its order on reconsideration, the Board said:

“We agree that claimant has the burden of establishing that his cervical impairment is due to his compensable injury. Claimant may, however, meet that burden by presenting a treating physician’s or medical arbiter’s report that: (1) contains impairment findings that are consistent with [his] compensable injury; and (2) does not attribute those findings to causes other than the compensable injury. For the reasons stated in our prior order, we continue to conclude that claimant has met [his] burden under that standard.” (Emphasis supplied.)

In employer’s view, the emphasized portion of the Board’s discussion shows that it has deviated from the requirement of ORS 656.214(5) that “the criteria for rating disability shall be the permanent loss of earning capacity due to the compensable injury.” (Emphasis supplied.) Employer and the dissenting opinion believe that the Board’s “consistent with” language diminishes claimant’s burden to show that his impairment is “due to” the injury. In our view, read in the context of the preceding sentence and its earlier findings, the Board’s explanation of the evidence that claimant was required to produce was correct. As the Board found, the record in this case identifies no noncompensable factors that may have contributed to claimant’s impairment. The Board is correct that, when the record discloses no other possible source of impairment, medical evidence that rates the impairment and describes it as “consistent with” the compensable injury supports a finding that the impairment is due to the compensable injury. It is the Board’s responsibility to make findings regarding claimant’s impairment. It has made those findings and they are supported by substantial evidence.

Affirmed.