Harvey v. Saif Corp. (In re Comp. of Harvey)

286 Or.App. 539

398 P.3d 944

In the Matter of the Compensation of Mary M. Harvey, Claimant.

Mary M. HARVEY, Petitioner,

v.SAIF CORPORATION and Oregon Health And Science University, Respondents.

A157541

Court of Appeals of Oregon.

Argued and submitted January 8, 2016.

July 6, 2017

James S. Coon, Portland, argued the cause for petitioner. With him on the briefs was Swanson Thomas, Coon & Newton.

David L. Runner, Salem, argued the cause and filed the brief for respondents.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

ORTEGA, P.J.

Claimant fell at work and suffered various compensable injuries, including a concussion. She was awarded permanent partial disability with a Class 2 rating for cognitive impairment related to the concussion. SAIF requested reconsideration of that award and the Appellate Review Unit (ARU) reduced the cognitive impairment rating to a Class 1 based on the opinion of the medical arbiters. Claimant sought administrative review of that decision, and an administrative law judge (ALJ) and the Workers' Compensation Board (board), in turn, upheld the Class 1 rating. Claimant seeks judicial review of the board's order, arguing that the board erred by failing to conclude that the opinion of her attending physician—who rated her impairment as a Class 2—was more accurate and persuasive than that of the medical arbiters. Because we conclude that the board's order lacks substantial reason and that we therefore lack a sufficient basis to review for substantial evidence the board's findings as to the arbiters' opinions, we reverse and remand. ORS 183.482(8) ; ORS 656.298(7).

We recount the facts from the record and as adopted by the board. About two months after claimant sustained her work-related injuries, she began treatment with Dr. Wilson, her attending physician, who specializes in rehabilitation. In the months that followed, claimant underwent two neuropsychological evaluations by two other physicians, which revealed mild cognitive deficits. Wilson, relying on those evaluations and on claimant's reports of increased fatigue, opined that claimant had a Class 2 impairment for cognitive deficits. He opined that claimant's fatigue was related to the increased energy she was expending in attempting to overcome her cognitive deficits at work. The claim was then closed with an award of permanent partial disability for cognitive impairment at a Class 2 rating.

SAIF requested reconsideration of claimant's award and, as a result, claimant was evaluated by two medical arbiters: Dr. Leland, a neuropsychologist, and Dr. Lorber, a physiatrist. Leland, referencing claimant's difficulty with fatigue and reduced working hours, diagnosed her with a mild cognitive disorder and rated her disability as a Class 1.

Lorber similarly concluded that claimant fell within a Class 1 rating due to her cognitive deficits. Both medical arbiters noted that claimant presented with some somatic focus.¹ Based on the medical arbiters' opinions, the ARU reduced claimant's disability rating to a Class 1.

Claimant then sought review by an ALJ, arguing that the opinions of Leland and Lorber regarding her impairment rating were not as persuasive as Wilson's opinion because they had not adequately considered her extreme fatigue and its effect on her ability to work full time. In its order, the ALJ explained that the sole issue in this case was the extent of claimant's cognitive impairment; that is, whether claimant's impairment was a Class 1 or a Class 2. That issue, according to the ALJ, turned on "whether a preponderance of * * * the medical evidence demonstrates that the findings from the attending physician, Dr. Wilson, are more accurate and should be considered, rather than the findings of the medical arbiters."² The ALJ went on to state that, although Leland and Lorber did not specifically address whether claimant's reports of extreme fatigue would place her in Class 2 rather than Class 1, that alone did not render their opinions less persuasive. The ALJ explained that under Class 1 and Class 2 the focus is on whether claimant is limited in the types of work or types of jobs that claimant can perform. On that issue, the ALJ recognized that claimant was working fewer hours, which was the basis for Wilson's Class 2 rating, but noted that there was "no evidence that claimant is unable to perform the same type of work that she was performing prior to the injury." Thus, the ALJ concluded that Leland and Lorber's failure to address claimant's fatigue did not detract from their conclusions about her rating, as she was still able to perform the same type of work. In addition, citing OAR 436-035-0390(10)(b), the ALJ concluded that the medical evidence indicated that "claimant's objective impairment is mild, and other limits and complaints are due to increased somatic focus, which is not related to claimant's brain injury."³

Claimant sought board review of the ALJ's order, arguing that, because Wilson considered her fatigue in rating her impairment, unlike the medical arbiters, his opinion should be used to restore her previous award of a Class 2 rating. The board, however, adopted and affirmed the ALJ's order, supplemented by its own reasoning. Citing SAIF v. Banderas , 252 Or.App. 136, 144-45, 286 P.3d 1237 (2012), the board stated that, because it was not expressly rejecting Wilson's medical findings, the issue was whether those findings were more accurate than those of the medical arbiters. As to that point, claimant maintained that the findings of Leland and Lorber were less accurate, because they had not adequately considered her extreme fatigue and reduced work hours. Thus, the board set out to determine whether Leland and Lorber had indeed failed to consider those issues. To do so, the board examined their opinions, stating as follows:

"In opining that claimant's permanent impairment met the criteria for Class 1, Drs. Leland, a clinical psychologist, and Lorber, a physiatrist, expressly referenced claimant's fatigue and work hour limitations. Specifically, Dr. Leland noted that claimant was experiencing 'extreme fatigue,' resulting in a reduced work week. * * * Dr. Leland also reviewed the closing examination of Dr. Wilson (the attending physician), which noted that claimant continued to report exhaustion and fatigue. * * * Dr. Lorber, too, noted that claimant was working part-time due to fatigue."

(Emphases added.) Based on that assessment, the board concluded that Leland and Lorber had considered claimant's fatigue and reduced hours in analyzing her impairment, and, thus, it was "not persuaded that the arbiters neglected to apply the required elements of the Director's permanent disability standards in rating claimant's impairment attributable to her accepted concussion condition." Further, the board stated that there was no indication that the arbiters had misunderstood the appropriate standards for rating cognitive impairment. As such, the board indicated, it was unable to conclude that Wilson's findings were more accurate than those of Leland and Lorber. Thus, over the dissent of one board member, the board upheld the Class 1 rating.

The dissenting board member reasoned that, because Leland and Lorber did not specifically address claimant's fatigue or provide any reasoning in support of their Class 1 rating, there was no basis to conclude that they had considered all the necessary factors in rating claimant's impairment. Rather, the dissent found Wilson's findings more accurate because he had explained how claimant's fatigue and her inability to work regular hours justified a Class 2 rating.

On judicial review, claimant's primary argument is that the board erred in relying on the medical arbiters' impairment ratings because the arbiters "did not apply the Class 1 standards to claimant but gave only conclusory opinions." In particular, claimant argues that the board "did not articulate substantial reason based on the record for finding that * * * Wilson was not more accurate" and that "there was no substantial evidence for the board's finding." Claimant maintains that there is no evidence to support the board's assertion that Leland and Lorber considered claimant's fatigue or work hour limitations as part of its reasoning and contends that Leland and Lorber did not give any explanation for why they applied the Class 1 rating or how they distinguished the Class 2 rating. Thus, according to claimant, the board's decision to rely on their "unexplained"...