Johnson v. SAIF Corp. (In re Johnson)

307 Or.App. 1

475 P.3d 465

In the MATTER OF the COMPENSATION OF Marisela JOHNSON, Claimant.

Marisela Johnson, Petitioner,

v.SAIF Corporation and The Terrace Corporation, Respondents.

A160491

Court of Appeals of Oregon.

Submitted on remand November 26, 2019.

October 7, 2020

Donald M. Hooton filed the briefs for petitioner.

Julie Masters filed the brief for respondents.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

EGAN, C. J.

This case is on remand from the Supreme Court for reconsideration in light of the court's opinion in Caren v. Providence Health System Oregon , 365 Or. 466, 446 P.3d 67 (2019). Caren involved a workers’ compensation claim that the employer accepted for "lumbar strain." Medical arbiters ultimately opined that 70 percent of the claimant's range-of-motion impairment was due to preexisting arthritis, and the claimant's permanent disability award was apportioned, or reduced, accordingly. The claimant had not requested acceptance of a combined condition, and the employer had not accepted or denied a combined condition.

The Workers’ Compensation Board upheld the apportionment, rejecting the claimant's contention that she was entitled to an award for her full range-of-motion impairment. In a per curiam opinion, Caren v. Providence Health System Oregon , 289 Or. App. 157, 406 P.3d 158 (2017), we affirmed the board's order upholding an apportionment of benefits to reduce the claimant's benefits for impairment by the impairment attributable to the preexisting condition. We cited our opinion in McDermott v. SAIF , 286 Or. App. 406, 420, 398 P.3d 964 (2017), vacated and remanded , 365 Or. 657, 451 P.3d 1014 (2019), in which we had held that a worker's benefits for impairment at the time of claim closure could be reduced by the percentage of impairment "due to" the worker's legally cognizable preexisting condition, unless the preexisting condition had been claimed by the worker, accepted by the employer as part of a combined condition, and remained compensable at the time of closure.

The Supreme Court allowed review in Caren to overrule our analysis in McDermott . Under the Supreme Court's opinion in Caren , if the work injury is a material contributing cause of the worker's new impairment but a portion of the new impairment is caused by a combining of the work injury and a cognizable preexisting condition, then benefits for the new impairment may be reduced by the new impairment caused by the combined condition only if the employer has identified the combined condition and denied it before claim closure pursuant to the procedure described in ORS 656.268(1)(b). 365 Or. at 487, 446 P.3d 67. It is not the claimant's burden to first seek acceptance of a combined condition.¹ Id.

In this case, claimant had an accepted claim for an injury to her left hand and a denied claim for an injury to her left rotator cuff. In evaluating claimant's impairment from the accepted hand claim only, the medical arbiter identified limited range of motion attributable to the hand injury. He also identified a loss of grip strength, which he attributed to a combined condition attributable 50 percent to the hand injury and 50 percent to the shoulder conditions. The Appellate Review Unit (ARU) issued an order on reconsideration awarding claimant benefits for seven percent whole-person impairment for impairment to the left hand.² The impairment value for loss of grip strength was apportioned to the hand claim at 50 percent. The board upheld the apportionment, and we affirmed the board's order, rejecting claimant's contention that there should be no reduction in the impairment benefits for claimant's hand injury for a loss of grip strength attributable to claimant's denied shoulder condition. Johnson v. SAIF , 291 Or. App. 1, 7, 418 P.3d 27 (2018). We first cited our opinion in McDermott , and reasoned that McDermott resolved most of claimant's statutory construction contentions. Id. at 4, 418 P.3d 27.

We then considered and addressed claimant's contention that apportionment is precluded under the Supreme Court's opinion in Schleiss v. SAIF , 354 Or. 637, 655, 317 P.3d 244 (2013), because claimant's preexisting shoulder condition was not a "legally cognizable" preexisting condition for which apportionment is available. Although we agreed with the claimant that his condition was not "legally cognizable" as a preexisting condition, we nonetheless upheld the apportionment of impairment benefits. Johnson , 291 Or. App. at 6, 418 P.3d 27. That is because the shoulder claim had been denied. See ORS 656.262(2) ("The compensation due under this chapter shall be paid periodically, *** except where the right to compensation is denied by the insurer or self-insured employer."); ORS 656.268(15) ("Conditions that are direct medical sequelae to the original accepted condition shall be included in rating permanent disability of the claim unless they have been specifically denied."). We concluded that a worker is not entitled to benefits for impairment due to a condition that has been denied and that benefits for impairment could be reduced by that the portion of claimant's impairment attributable to the denied shoulder claim. Johnson , 291 Or. App. at 7, 418 P.3d 27.

The Supreme Court now asks us to reconsider our opinion in light of its opinion in Caren . When a worker's impairment is caused by a combination of a work-related injury and a cognizable preexisting condition, and the work-related injury is a material contributing cause of the total impairment, Caren holds that the worker is entitled to be compensated for the "full measure" of impairment, unless the employer has issued a preclosure denial of the worker's combined condition that has contributed to the worker's total impairment. 365 Or. at 487, 446...