Scherer v. Oregon Veterans' Home & Cigna

33 P.3d 1071, 177 Or. App. 606, 2001 Ore. App. LEXIS 1636
CourtCourt of Appeals of Oregon
DecidedOctober 31, 2001
Docket99-06720; A110619
StatusPublished

This text of 33 P.3d 1071 (Scherer v. Oregon Veterans' Home & Cigna) 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
Scherer v. Oregon Veterans' Home & Cigna, 33 P.3d 1071, 177 Or. App. 606, 2001 Ore. App. LEXIS 1636 (Or. Ct. App. 2001).

Opinion

KISTLER, J.

Employer terminated claimant’s temporary total disability (TTD) benefits because she refused modified work. The Workers’ Compensation Board upheld employer’s decision, and claimant seeks review of the Board’s order. We reverse and remand for reconsideration.

Claimant is a certified nursing assistant. She suffered a compensable back injury. After a period of bed rest, her treating doctor, Dr. Irvine, released her to light duty work and noted in the release that claimant was “OK to fold laundry.” Employer offered claimant modified work folding laundry during the night shift from 10 p.m. to 6 a.m. Claimant declined the work, citing medical reasons unrelated to her back injury that precluded the change in hours. She told employer that she takes medication in the evening for chronic migraine headaches and insomnia that prevents her from working on the night shift.

Employer wrote to Irvine, asking whether claimant could rearrange her schedule and take the sleep-inducing medication after working the night shift. Irvine marked a box labeled “no” on the note and wrote that the suggested change “would be of detriment” to claimant. Claimant did not accept the modified work. Relying on OAR 436-060-0030(5),1 employer terminated claimant’s TTD benefits.

Claimant requested a hearing and argued, as she does on review, that employer misinterpreted the applicable administrative rule. She did not dispute that, under OAR 436-060-0030(5), a worker who declines physician-approved [609]*609modified work is not entitled to the continued payment of TTD benefits. She argued that the employment offered in this case was not physician-approved. Although Irvine had noted that she could perform the physical tasks involved in the modified work, he had objected to the shift change because it would be detrimental to her health. In claimant’s view, her inability to work at night was a valid basis on which Irvine could conclude that the modified work was not “within [her] capabilities.” See OAEt 436-060-0030(5)(b). She argued that, because Irvine had not approved the work, her failure to accept the job did not disqualify her from receiving TTD benefits. Employer argued below, as it does on review, that the determination whether employment is within a “worker’s capabilities” is limited to an evaluation of whether the worker can perform the physical tasks required by the modified work. In employer’s view, Irvine’s opinion that claimant was “OK to fold laundry” demonstrated that the work was within her capabilities.

The administrative law judge (ALJ) reasoned that the modified work employer offered to claimant was “within [her] capabilities” if she could do the tasks that the work itself entailed. On review, the Board affirmed the ALJ’s order. Citing Roseburg Forest Products v. Wilson, 110 Or App 72, 75, 821 P2d 426 (1991), it noted that “it is well-settled that [an employer] may properly terminate temporary disability when a claimant refuses a modified job for reasons unrelated to the compensable injury.” It then reasoned that, “ [i] n this case, claimant has declined to accept modified work because of medication requirements for noncompensable medical conditions.” It followed, the Board concluded, that employer had no obligation to continue paying claimant temporary disability benefits.

Because the Board’s order turns on its reading of Wilson, we begin with that decision. The claimant in Wilson began receiving TTD benefits after he suffered a compensa-ble injury. Wilson, 110 Or App at 74. The employer eventually offered him modified work and the claimant’s physician approved the job. Id. However, “[w]hen claimant arrived at the designated job site, he encountered a labor dispute and refused to cross the picket line.” Id. Employer considered the [610]*610claimant’s failure to report to work to be a refusal of employment and terminated TTD benefits. Id. On appeal, we reasoned:

“In the absence of a legislative direction to the contrary, TTD benefits are not available if the loss results from other than the compensable injury. When a claimant refuses physician approved modified work under former OAR 436-60-030(5), [the] resulting wage loss is not caused by the com-pensable injury.”

Id. at 75. Because the claimant’s refusal to cross the picket line did not result from the compensable injury, we held that TTD benefits were not available.2

Since Wilson, the Board has applied that decision to explain why factors unrelated to a worker’s physical capabilities cannot justify a refusal to accept physician-approved modified employment. See Glenda Jensen, 50 Van Natta 1074 (1998) (inability to take modified work because of conflicting child care concerns did not prevent employer from terminating TTD); Robert E. Dixon, 48 Van Natta 46 (1996) (inconvenience of securing transportation to modified job site did not prevent authorization to terminate disability benefits); Antonio Garcia, 46 Van Natta 862 (1994) (same). In all of those decisions, the issue has been whether declining a job for reasons that are unrelated to a worker’s physical capabilities will disqualify the worker from receiving temporary disability benefits. Neither Wilson nor the Board’s decisions have considered the issue that claimant raises here— whether an employer can cut off a worker’s right to receive temporary disability benefits by offering the worker a job that the worker is physically unable to perform.

Not only did Wilson not address that specific question, but its reasoning cuts in claimant’s favor. Wilson’s reasoning is contained in the two sentences quoted above. The first sentence states the general rule that “TTD benefits are [611]*611not available if the loss results from other than the compen-sable injury.” Wilson, 110 Or App at 75. But that sentence does not identify, with any precision, the degree of proximity that must exist between the “compensable injury” and the “wage loss” before one can be said to “result” from or be caused by the other. The second sentence clarifies that issue. It states that the claimant’s “wage loss is not caused by the compensable injury” “when a claimant refuses physician approved modified work.” Id. Under Wilson and the administrative rules, the question whether the wage loss results from the compensable injury turns on whether the physician has approved the modified work pursuant to OAR 436-060-0030(5)(b). We turn to that issue.

The text of OAR 436-060-0030(5) is straightforward. Subsection (a) provides that the employer or insurer must notify the attending physician of the physical tasks to be performed by the injured worker. Subsection (b) provides that the attending physician must then agree that “the employment appears to be within the worker’s capabilities.” By requiring employers to provide information regarding physical tasks in subsection (a), the structure of the rule indicates that the determination that follows — the physician’s evaluation of a worker’s capabilities in subsection (b) — is intended to be an examination of physical capabilities. See ORS 174.010.

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Related

Roseburg Forest Products v. Wilson
821 P.2d 426 (Court of Appeals of Oregon, 1991)
State v. Hval
25 P.3d 958 (Court of Appeals of Oregon, 2001)
Portland General Electric Co. v. Bureau of Labor & Industries
859 P.2d 1143 (Oregon Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
33 P.3d 1071, 177 Or. App. 606, 2001 Ore. App. LEXIS 1636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scherer-v-oregon-veterans-home-cigna-orctapp-2001.