SAIF Corp. v. Fister

33 P.3d 320, 177 Or. App. 13, 2001 Ore. App. LEXIS 1509
CourtCourt of Appeals of Oregon
DecidedOctober 3, 2001
Docket95-05569; A103418
StatusPublished
Cited by6 cases

This text of 33 P.3d 320 (SAIF Corp. v. Fister) 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
SAIF Corp. v. Fister, 33 P.3d 320, 177 Or. App. 13, 2001 Ore. App. LEXIS 1509 (Or. Ct. App. 2001).

Opinions

[15]*15EDMONDS, P. J.

This case presents a dispute about how to calculate one of the variables used to measure the capacity a worker loses as the result of a compensable injury. We conclude that we are unable on this record to determine whether the Workers’ Compensation Board made the proper calculation. We reverse the Board’s order and remand for reconsideration.

The amount of compensation that an injured worker receives for a permanent injury depends on the extent of the disability (called “permanent partial disability,” or PPD) caused by the injury. ORS 656.214(5). The extent of disability, expressed as a percentage ie.g., “14 percent PPD”), depends in turn on the seriousness of the injury “as modified by factors of age, education and adaptability to perform a given job.” ORS 656.726(4)(f)(A). The Department of Consumer and Business Services provides formulas for expressing these modifying factors as numbers. A high number adds to the extent of disability, which, in turn, adds to the injured worker’s compensation.

The modifying factor at issue in this case is “adaptability.” Adaptability, under the Department’s rules, is determined by comparing the worker’s ability to perform work before and after the injury or, in the language of the rules, by comparing the worker’s “base functional capacity” (BFC) with his or her “residual functional capacity” (RFC). Former OAR 436-35-310(2) (1994).1 These statutes and rules reflect the proposition that a worker whose injury causes a significant loss of working capacity deserves more compensation than a worker whose injury inflicts minimal harm to working capacity, even if both workers end up identically disabled.

In this case, claimant worked as a certified nursing assistant for employer South Hills Health Care Center. While at work on May 11, 1993, she was injured when she fell. Her employer’s insurer, SAIF, accepted her workers’ compensation claim and paid for chiropractic treatment. A year after her injury, claimant became medically stationary. [16]*16Her claim was subsequently closed by a determination order that concluded that she had not suffered any PPD. She requested reconsideration and, after an evaluation by a medical arbiter, was awarded 14 percent PPD. On review by the hearings division, an administrative law judge (AU) increased the award to 31 percent. Claimant then appealed to the Board, arguing that the AU erred in classifying her pre-injury capability as “medium” instead of “heavy.” The Board rejected her argument but, based on findings not relevant to this case, raised claimant’s PPD from 31 percent to 37 percent. Claimant sought review before this court, arguing that the Board had erroneously refused to consider testimony regarding the nature of her job at the time of her injury. We agreed with her argument and remanded to the Board for reconsideration. Fister v. South Hills Health Care, 149 Or App 214, 942 P2d 833 (1997), rev den 326 Or 389 (1998).

On reconsideration, the Board considered the evidence that was the subject of claimant’s first request for judicial review. It awarded claimant unscheduled disability of 45 percent. It observed,

“Adaptability is measured by comparing a worker’s Base Functional Capacity (BFC) to the Residual Functional Capacity (RFC) at the time of becoming medically stationary. Former OAR 436-35-310(2). Here, there is no dispute that claimant’s RFC is ‘medium/light.’ The dispute focuses solely on claimant’s BFC, with claimant contending that her BFC is ‘heavy’ and SAIF contending that it is ‘medium.’ Claimant has the burden of proving the nature and extent of any disability resulting from the compensable injury. ORS 656.266.
“Here, the parties do not dispute the Appellate Reviewer’s finding that the highest SVP[2] claimant attained in the last five years was her at-injury job. (Ex 35-5). Thus, we find that claimant has met the SVP requirements pursuant to former OAR 436-35-300(3). Former OAR 436-35-310(4)(c). Therefore, claimant’s BFC is determined under former OAR 436-35-310(4)(a), which provides for determination of a worker’s BFC using:
[17]*17“‘The highest strength category assigned in the DOT [Dictionary of Occupational Titles] for the most physically demanding job that the worker has successfully performed in the five (5) years prior to determination. When a combination of DOT codes most accurately describes a worker’s duties, the highest strength for the combination of the codes shall apply.’
“The parties do not dispute that the most physically demanding job claimant performed in the five years prior to determination is her at-injury job as a CNA. The dispute arises over whether the duties of claimant’s at-injury job more closely fit within the DOT description of a nurse’s assistant (DOT 355.674-014) or an orderly (DOT 355.674-018). * * * After reviewing the record, including claimant’s testimony, we find that a combination of the two DOT codes for nurse’s assistant and orderly most accurately describes claimant’s at-injury CNA job.” (Footnote omitted.)

The Board appears to have reasoned under OAR 436-35-3103 as follows: It found that claimant satisfied the SVP requirements for her job at the time of injury. Because of that fact, she met the requirements of OAR 436-35-300(3), and, therefore, her BFC could not be calculated by using subsection (4)(c). The Board then turned to a calculation under subsection (4)(a). Under subsection (4)(a), the Board concluded that it should combine the two DOT job descriptions to most accurately describe claimant’s job at injury. As a result, [18]*18the Board awarded claimant additional PPD for a total of 45 percent.

SAIF seeks review of the Board’s calculation and makes two assignments of error: (1) that the Board erred in its application of OAR 436-35-310(4)(a); and (2) that the Board should have instead used OAR 436-35-310(4)(c) in calculating claimant’s BFC. Claimant contends that, under either subsection, the correct BFC is “heavy.” Our first inquiry is whether the Board’s decision to reject (4)(c) as the method for calculation is supported by substantial reason.

OAR 436-35-310(4) required the Board to use the calculation that would result in the “most current” assessment of a worker’s capacity. Subsection (4)(c) authorizes the Board to use the “job at the time of injury,” under certain circumstances. Thus, subsection (4)(c) appears to be a logical beginning point for a calculation under the rule and the circumstances of this case — claimant’s job at the time of injury is likely to be the “most current” assessment. However, subsection(4)(c) can be applied only to workers who (1) do not meet the requirements of OAR 436-35-300(3) regarding formal educational and vocational training, and (2) have not had a “second-level physical capacity evaluation performed prior to the on-the-job injury.” The Board does not explain why subsection (4)(c) is inapplicable, other than to conclude that claimant had met the SVP requirements of OAR 436-35-300(3) for her job at the time of her injury.

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Related

Mount v. Department of Consumer & Business Services
46 P.3d 210 (Court of Appeals of Oregon, 2002)
Trujillo v. Pacific Safety Supply
45 P.3d 1017 (Court of Appeals of Oregon, 2002)
SAIF Corp. v. Fister
33 P.3d 320 (Court of Appeals of Oregon, 2001)

Cite This Page — Counsel Stack

Bluebook (online)
33 P.3d 320, 177 Or. App. 13, 2001 Ore. App. LEXIS 1509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-fister-orctapp-2001.