Suhor Industries, Inc. v. Pickett

147 P.3d 359, 209 Or. App. 219, 2006 Ore. App. LEXIS 1767
CourtCourt of Appeals of Oregon
DecidedNovember 8, 2006
Docket03-05645, 03-5278; A126508
StatusPublished

This text of 147 P.3d 359 (Suhor Industries, Inc. v. Pickett) 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
Suhor Industries, Inc. v. Pickett, 147 P.3d 359, 209 Or. App. 219, 2006 Ore. App. LEXIS 1767 (Or. Ct. App. 2006).

Opinion

YHAGUEN, S. J.

Employer seeks review of an order of the Workers’ Compensation Board (board) upholding an award of scheduled permanent partial disability (PPD) for claimant’s skin condition. Claimant cross-petitions for review, contending that the board erred in overturning his award for unscheduled permanent disability. We review the board’s findings for substantial evidence, ORS 183.482(8)(c), and its legal conclusions for errors of law. ORS 183.482(8)(a). We affirm on the petition and on the cross-petition.

Claimant worked for employer between September 2001 and August 2002. He used epoxy glue to glue plastic sheets to the insides of concrete burial vaults. Claimant developed a rash on both hands and arms and on his face. Dr. Norris, claimant’s attending physician, examined claimant and opined that claimant had an allegeric reaction to epoxy resin:

“It appears he was sensitized to the epoxy resin in the first few months of his job. I would expect this allergic reaction would persist indefinitely. * * * I would expect [claimant] to do well in a job with [employer] that has no exposure to epoxy resin. We know that epoxy resin can penetrate gloves; so wearing gloves while working with the adhesive would not protect him from breaking out; he needs to completely avoid any exposure to this product.”

Claimant was taken off work with employer and still has not returned to work. Employer accepted a disabling claim for “dermatitis of hands, face and arms due to epoxy resin exposure during the period September 10,2001 through August 1, 2002.”

In January 2003, Dr. Dordevich examined claimant at employer’s request. Dordevich found that claimant’s face was clear of lesions and that the skin on claimant’s hands was well healed, although subtle changes were present over some of the joints of his right hand. Dordevich diagnosed “contact dermatitis secondary to exposure to epoxy resin.” He concluded that claimant was medically stationary and that there were no permanent residuals due to the work exposure. Dordevich explained that, as long as claimant was not [222]*222exposed to the chemical in the future, no skin problems would be expected. Norris concurred in Dordevich’s findings and recommendations.

Employer issued a notice of closure in March 2003, awarding claimant temporary disability, but no permanent disability. Claimant requested reconsideration. Dr. Harris, a medical arbiter, examined claimant. In describing the history of claimant’s condition, Harris noted that patch testing had shown that claimant had “an immunologic reaction to epoxies.” He reported that, despite the current lack of exposure to epoxies or other chemicals, claimant continues to have problems with the skin on his hands. By clinical examination, Harris found continued symptoms of dermatitis on claimant’s fingers and on the back of each hand. Harris diagnosed “allergic contact dermatitis” and explained that any future exposure to epoxy glues or products containing that family of chemicals would result in an outbreak of allergic contact dermatitis, which would cause cracking, peeling, redness, and blisters. Harris stated that such responses would restrict claimant from most work activities with employer. With respect to classification of claimant’s permanent impairment, Harris opined that claimant “best fits into class 3.” He explained:

“[Claimant] has signs and symptoms of a skin disorder (abnormalities on exam, and abnormal patch testing to epoxies). Continuous treatment is required — total avoidance of epoxy glues and resins; and I believe there is moderate limitation in the performance of work activities. By this I am referring to his exclusion from any kind of work where epoxy resins and glues are used. These are common industrial components, and there are a variety of manufacturing processes, in a number of different industries, where he must avoid all contact with this family of chemicals.”

The Appellate Review Unit (ARU) issued an order on reconsideration awarding claimant 38 percent scheduled permanent disability for each hand under OAR 436-035-0110(6)(c), consistent with Harris’s determination that claimant suffers from a Class 3 dermatological condition.1 Also, based on [223]*223Harris’s statements that claimant had developed an “immunologic reaction” to his exposure to epoxy resin, the ARU awarded claimant 21 percent unscheduled permanent disability, under OAR 436-035-0450,* 2 for impairment to his immune system. Employer requested a hearing.

The administrative law judge (ALJ) upheld the order on reconsideration, and employer appealed. In its order on review, the board upheld the ALJ’s order with respect to the award of scheduled permanent partial disability, but overturned the award of unscheduled permanent partial disability. The board concluded that Harris’s findings regarding the extent of claimant’s permanent impairment were based on complete and accurate information and were more persuasive than the opinions of Norris and Dordevich indicating that claimant had no permanent impairment. Citing Hicks v. [224]*224SAIF, 194 Or App 655, 96 P3d 856, on recons, 196 Or App 146, 100 P3d 1129 (2004), and Khrul v. Foremans Cleaners, 194 Or App 125, 93 P3d 820 (2004), the board noted that, under the applicable version offormer OAR 436-035-0007(15) (2004),3 unless a preponderance of the evidence demonstrates that different findings by the attending physician are more accurate, the board is required to accept the medical arbiter’s opinion. Reasoning that there was not a preponderance of medical opinion demonstrating that different findings by the attending physician were more accurate, the board relied on Harris’s impairment findings and concluded that claimant had established entitlement to a “Class 3” rating under OAR 436-035-0110(6) and scheduled permanent partial disability of 38 percent.

On judicial review, employer contends that the board erred in relying on Harris’s impairment findings for scheduled permanent partial disability, because the evidence does not support a Class 3 designation of claimant’s condition and a preponderance of the medical evidence establishes a different level of impairment. Specifically, employer contends that several of the criteria required for a Class 3 designation under OAR 436-035-0110(6)(c) are not present. Under OAR 436-035-0110(6)(c), a Class 3 designation is appropriate if “regularly prescribed examinations and continuous treatments are required, and the worker has many limitations in the performance of activities of daily living.” Employer contends that, despite Harris’s classification of claimant’s dermatological condition as a Class 3 skin condition, there is no evidence that claimant needs regularly prescribed examinations and continuous treatment or has many limitations in the performance of activities of daily living. We agree with employer that the evidence is slight with respect to at least two of the criteria for a Class 3 skin condition. The difficulty, however, is that the board expressly rejected as unpersuasive [225]*225the conclusions of Dordevich and Norris, the attending physician, that claimant suffers from no

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Related

Khrul v. Foremans Cleaners
93 P.3d 820 (Court of Appeals of Oregon, 2004)
Hicks v. SAIF Corp.
96 P.3d 856 (Court of Appeals of Oregon, 2004)
Hicks v. SAIF Corp.
100 P.3d 1129 (Court of Appeals of Oregon, 2004)

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Bluebook (online)
147 P.3d 359, 209 Or. App. 219, 2006 Ore. App. LEXIS 1767, Counsel Stack Legal Research, https://law.counselstack.com/opinion/suhor-industries-inc-v-pickett-orctapp-2006.