Robinette v. SAIF Corp. (In re Robinette)

307 Or.App. 11

475 P.3d 470

In the MATTER OF the COMPENSATION OF Theresa M. ROBINETTE, Claimant.

Theresa M. Robinette, Petitioner,

v.SAIF Corporation and HCW Clients - Oregon Homecare Commission, Respondents.

A170673

Court of Appeals of Oregon.

Argued and submitted August 20, 2020.

October 7, 2020

Jodie Anne Phillips Polich, Milwaukie, argued the cause for petitioner. Also on the brief was Law Offices of Jodie Anne Phillips Polich, P.C.

Allison B. Lesh, Eugene, argued the cause for respondents. On the brief was Daniel Walker.

Before DeVore, Presiding Judge, and Egan, Chief Judge, and DeHoog, Judge.

EGAN, C. J.

This case presents yet another opportunity to address issues around compensation for impairment in light of the Supreme Court's opinion in Caren v. Providence Health System Oregon , 365 Or. 466, 446 P.3d 67 (2019). The question presented is whether, when the medical record shows that a particular type of new impairment is caused entirely by a preexisting condition that has not been claimed or has not combined with the compensable injury, the claimant must nonetheless be paid compensation for that impairment, as long as the claimant's new impairment as a whole is caused in material part by the work-related injury. We conclude that, under the Supreme Court's opinion in Caren , unless the employer has issued a preclosure denial of the condition giving rise to the particular new impairment, the employer must pay for the "the full measure" of the claimant's impairment. Here, the board allowed SAIF to reduce claimant's benefits by the impairment attributable to the preexisting condition, although SAIF had not issued a preclosure denial of that condition. We therefore reverse and remand the board's order.

In Caren , the claim involved a preexisting condition that had combined with a work injury to cause increased loss of lumbar range of motion. The question was whether the employer was entitled to apportion benefits for new range-of-motion impairment caused in part by the compensable injury and in part by a preexisting condition that had not been accepted as compensable and that was "cognizable," i.e. , that could be treated as a preexisting condition. See ORS 656.005(24)(a) (to qualify as a preexisting condition, a condition must have been treated or diagnosed before the compensable injury, "[e]xcept for claims in which a preexisting condition is arthritis or an arthritic condition"). The disputed loss of lumbar range-of-motion impairment was caused in material part by the compensable injury and in part by a cognizable preexisting condition that had not been denied and was, thus, the result of a combined condition. The employer sought to reduce the claimant's impairment benefits by the new impairment attributable to the cognizable preexisting condition, which had not been claimed by the worker or denied by the employer either as a separate condition or as part of a combined condition. The court attempted to reconcile an apparent tension between "overlapping statutes," ORS 656.214(1)(a), (c)(A) (providing that "[p]ermanent impairment resulting from the compensable industrial injury" is "the loss of use or function of a body part or system due to the compensable industrial injury"); ORS 656.005(7)(a)(B) (setting forth major contributing cause standard of proof when a compensable injury combines with a qualifying "preexisting condition" to "cause or prolong" the injured worker's disability); and ORS 656.268(1)(b) (setting forth procedure for the denial of combined conditions). The court held in Caren that, when a worker's impairment is due to a combining of the compensable injury and a preexisting condition, "the legislature intended that injured workers would be fully compensated for new impairment if it is due in material part to the compensable injury, except where an employer has made use of the statutory process for reducing liability after issuing a combined condition denial." 365 Or. at 468, 446 P.3d 67. The court reasoned that a claimant must have preclosure notice of an employer's intention to deny a contribution to new impairment by a worker's preexisting condition and determined that, before benefits for new impairment may be reduced by the portion of impairment caused by a preexisting condition, the employer must issue a combined condition denial. Id. at 473, 446 P.3d 67. If there is no combined condition denial, as long as the work injury is a material contributing cause of a worker's "impairment as a whole," benefits must be paid for "the full measure of impairment." Id . at 487, 446 P.3d 67.

Today, we have decided Johnson v. SAIF , 307 Or. App. 1, 475 P.3d 465 (2020), which was on remand from the Supreme Court after Caren . In Johnson , the claimant had a compensable hand injury. The disputed new impairment was a loss of hand-grip strength, which the medical evidence showed was caused in material part by the compensable hand injury. But a portion of the claimant's grip-strength impairment was also due to a noncognizable preexisting condition—hence, the impairment was due to a combined condition. The question in Johnson , as in Caren , was whether benefits for the new impairment could be apportioned. As in Caren , there had been no denial of a combined condition. We therefore held in Johnson that, as in Caren , the worker must be compensated for "the full measure" of impairment.

Here, claimant has received an award of a five percent whole person impairment based on an award of five percent impairment for the surgery and five percent impairment for a chronic condition. A medical arbiter also identified specific impairment findings in claimant's knee for loss of range of motion and stability, both of which the medical arbiter determined are caused entirely by preexisting conditions that have not been accepted or denied, either separately or as part of a combined condition. The preexisting conditions were not identified until the claim was closed, and the record does not show whether they are legally cognizable. There is no medical evidence of a combined condition. The board declined to award impairment values for the loss of range of motion and stability, reasoning that no impairment award could be given for impairment "entirely due to causes that are not related to the compensable injury."

Claimant contends on judicial review that, under Caren , the board erred in failing to award benefits for the impairment attributable to preexisting conditions, because the compensable work injury is a material contributing cause of claimant's impairment "as a whole," which includes the impairment value for the surgery and the value for the chronic condition, and employer has not availed itself of the statutory process for reducing claimant's permanent partial disability award by denying a combined condition as provided in ORS 656.268(1)(b).

Employer responds that...