SAIF Corp. v. Frank

960 P.2d 873, 153 Or. App. 514, 1998 Ore. App. LEXIS 561
CourtCourt of Appeals of Oregon
DecidedApril 22, 1998
DocketWCB 96-00302; CA A96873
StatusPublished
Cited by1 cases

This text of 960 P.2d 873 (SAIF Corp. v. Frank) 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. Frank, 960 P.2d 873, 153 Or. App. 514, 1998 Ore. App. LEXIS 561 (Or. Ct. App. 1998).

Opinion

EDMONDS, J.

SAIF Corporation (SAIF) seeks review of a Workers’ Compensation Board order in which the Board ruled that claimant was entitled to permanent disability compensation without first proving a “permanent worsening” of his compensable condition. We review for errors of law, ORS 183.482(8)(a), and affirm.

Claimant sustained a compensable low back injury on October 18,1992, which SAIF accepted as a nondisabling lumbosacral strain. SAIF paid for claimant’s chiropractic treatment through August 1993. On July 27,1994, claimant reinjured his low back and filed a new injury claim, which SAIF denied. Claimant requested a hearing on the denial, but before the hearing occurred SAIF and claimant entered into a stipulation. The stipulation provides, in part, that SAIF agrees to “reopen” the 1992 claim “as an aggravation and process the claim according to law.” On July 20, 1995, SAIF sent claimant a letter in which it told claimant that “[y]our claim has * * * been reclassified as a disabling claim.” In September 1995, a notice of closure awarded claimant temporary total disability payments for the period between July 30, 1994, and August 7, 1994, and no permanent disability.

Claimant requested reconsideration and was examined by a medical arbiter. The arbiter identified restrictions in the range of motion of claimant’s back and concluded that he “has a mild chronic lumbosacral strain, dating from the October 18,1992, injury, that does not restrict his work activity.” On reconsideration, the department ruled that the evidence did not demonstrate a permanent worsening, as defined by former OAR 435-36-005(9), of claimant’s low back condition and affirmed the award of no unscheduled permanent disability.

Claimant requested a hearing. The administrative law judge (ALJ) ruled that claimant was entitled to a five percent permanent disability award for the loss of range of motion found by the arbiter. Although SAIF argued that [517]*517claimant was required to demonstrate a permanent worsening and had not done so, the ALJ ruled that such a showing was unnecessary. He explained:

“In reviewing this claim for an assessment of permanent disability benefits, the Appellate Reviewer applied the ‘redetermination’ requirements [of former OAR 436-35-007(5)1] following an aggravation claim. I do not find that that analysis applies under the facts of this case. Here, claimant has never had a first determination of permanent disability because his claim was initially accepted as non-disabling. This is the first determination of disability subsequent to the reclassification of his claim to disabling in July, 1995. Had claimant’s condition not worsened, he would not have been able to establish the aggravation which was accepted in July, 1995. It is only until his claim qualifies for closure that we can determine, in the first instance, whether that worsening was permanent. Based on the report of the medical arbiter, we can determine that the worsening was permanent.”

SAIF appealed the ALJ’s decision to the Board. The Board adopted and affirmed the ALJ’s order with supplementation. It agreed with the ALJ that former OAR 436-35-007(5) was inapplicable. It also ruled that former OAR 436-35-005(9), which defines “permanently worsened,” did not apply in the absence of a prior permanent disability award. It reasoned that, because there had been no last award or arrangement of compensation for the nondisabling injury, claimant was not required to prove a permanent worsening of his condition as a result of the compensable 1994 injury in order to have his permanent disability determined under the 1992 claim. The Board concluded that because “the arbiter [518]*518made valid, verifiable, objective findings of reduced range of motion, which establish that claimant has permanent impairment as a result of his lumbar strain,” claimant was entitled to an award of five percent permanent disability.

SAIF seeks review of the Board’s decision. It points out that ORS 656.277(2) provides that, after the lapse of one year from the date of injury, a “claim that a non-disabling injury originally was or has become disabling” is to be treated as a claim under ORS 656.273(1). Thus, it follows, according to SAIF, that the legislature intended that a claimant be required to prove a permanent worsening of his condition after the expiration of the one-year period before the claimant can recover permanent disability. SAIF explains:

“If the nondisabling status of an original claim, once final one year after the date of injury, does not constitute a ‘last award or arrangement of compensation’ under the Workers’ Compensation Law, then it is impossible for a claimant with such a claim to prove a compensable aggravation under ORS 656.273(1). Yet, ORS 656.277(2) expressly requires a claimant to prove a compensable aggravation of an original claim in nondisabling status to be entitled to further compensation. Obviously, therefore, the legislature intended that once the nondisabling classification of an original claim becomes final under ORS 656.277(2), that finality fixes the claimant’s permanent disability award at zero and constitutes a ‘last award or arrangement of compensation’ for purposes of ORS 656.273(1).”

SAIF concludes that claimant must prove a permanent worsening of his condition since October 1993 (one year after the 1992 injury) and that the Board erred when it awarded permanent disability in the absence of a finding that any permanent worsening had occurred.

Our task is to discern the intention of the legislature when ORS 656.273(1) and ORS 656.277(2) are read together and to determine whether those statutes are applicable to the facts in this case. We examine first the text and the context of the statutes. ORS 656.277 provides, in part:

“Claims for nondisabling injuries shall be processed in the same manner as claims for disabling injuries, except that:
[519]*519“(1) If within one year after the injury, the worker claims a nondisabling injury originally was or has become disabling, the insurer or self-insured employer, upon receiving notice or knowledge of such a claim, shall report the claim to the Director of the Department of Consumer and Business Services for determination pursuant to ORS 656.268.

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Cite This Page — Counsel Stack

Bluebook (online)
960 P.2d 873, 153 Or. App. 514, 1998 Ore. App. LEXIS 561, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-frank-orctapp-1998.