Robinette v. SAIF Corp. (In re Robinette)

369 Or. 767

511 P.3d 1074

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

Theresa M. Robinette, Respondent on Review,

v.SAIF Corporation and HCW Clients - Oregon Homecare Commission, Petitioners on Review.

SC S068207

Supreme Court of Oregon.

Argued and submitted June 24, 2021.

June 3, 2022

Daniel Walker, Appellate Counsel, SAIF Corporation, argued the cause and filed the briefs for petitioners on review.

Jodie Phillips Polich, Law Offices of Jodie Anne Phillips Polich, PC, Milwaukie, argued the cause and filed the brief for respondent on review.

Rebecca A. Watkins, Sather Byerly & Holloway, LLP, Portland, filed the brief for amici curiae Oregon Business & Industry and Providence Health & Services.

Sommer E. Tolleson, Tolleson Conratt Nielsen Maher & Replogle LLP, Tigard, filed the brief for amicus curiae Associated General Contractors - Oregon Columbia

Julene M. Quinn, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, Justices, and Nakamoto, Senior Judge, Justice pro tempore.^**

NELSON, J.

The dispute in this workers’ compensation case provides this court with another opportunity to address the meaning of the word "impairment" within the context of the workers’ compensation statutory structure. Under ORS 656.214, impairment is defined as "the loss of use or function of a body part or system due to the compensable industrial injury." This case involves loss of use or function of claimant's right knee—specifically, reduced range of motion and decreased stability in that knee—that was determined to be entirely related to causes other than claimant's compensable workplace injury. In addition, claimant has loss of use or function of that same knee—surgical value and chronic condition loss—that is related to the workplace injury. In claimant's view, she was entitled to the full measure of impairment for all new findings of loss—the reduced range of motion, the decreased stability, the surgical value, and the chronic condition. On judicial review, the Court of Appeals agreed with claimant, holding that "claimant's impairment ‘as a whole’ includes her whole-person impairment, of which the work injury is a material contributing cause, as well as her impairment due to loss of range of motion and stability." Robinette v. SAIF , 307 Or. App. 11, 16, 475 P.3d 470 (2020). SAIF disagreed and sought review before this court, arguing that findings of loss due entirely to causes other than the compensable injury do not satisfy the statutory definition of "impairment" and, accordingly, should be excluded from an injured worker's permanent partial disability award.

We agree with SAIF. For the reasons that follow, we conclude that claimant was not entitled to compensation for the reduced range of motion and decreased stability findings of loss. Accordingly, we reverse the decision of the Court of Appeals and affirm the order of the Workers’ Compensation Board.

I. FACTS AND PROCEDURAL HISTORY

A. Overview of Key Terminology and Statutory Background

To provide necessary context for the issues presented in this case, we begin with a brief overview of key terminology and the workers’ compensation claims process. After a workplace injury occurs, an injured worker is required to provide written notice of the injury to the employer within 90 days of the injury occurring. See ORS 656.265(1)(a) ("Notice of an accident resulting in an injury or death shall be given immediately by the worker or a beneficiary of the worker to the employer, but not later than 90 days after the accident. The employer shall acknowledge forthwith receipt of such notice."). During its investigation and evaluation of a submitted claim, the insurer or self-insured employer must determine if the claim is compensable. ORS 656.262. A "compensable injury" is "an accidental injury *** arising out of and in the course of employment requiring medical services or resulting in disability or death." ORS 656.005(7)(a). In most circumstances, the burden of proving that a particular injury is compensable, as well as proving the nature and extent of any disability resulting from that injury, is on the injured worker. ORS 656.266(1).

Once the insurer or self-insured employer has determined whether the claim is compensable, it is required to inform the claimant in writing of the claim's acceptance or denial. See ORS 656.262(6)(a) ("Written notice of acceptance or denial of the claim shall be furnished to the claimant by the insurer or self-insured employer within 60 days after the employer has notice or knowledge of the claim."). The workers’ compensation statutes set out specific requirements for both a notice of acceptance and a notice of denial. See ORS 656.262(6)(b) (setting out the requirements for a notice of acceptance); ORS 656.262(9) (setting out the requirements for a notice of denial).

A claim may be closed when the accepted, compensable condition becomes medically stationary, that is, when "no further material improvement would reasonably be expected from medical treatment or the passage of time." See ORS 656.005(17) (defining "medically stationary"). At that time, permanent partial disability awards, if applicable, are calculated.¹ Then, ORS 656.262(7)(c) sets out the procedure for closing the claim:

"When an insurer or self-insured employer determines that the claim qualifies for claim closure, the insurer or self-insured employer shall issue at claim closure an updated notice of acceptance that specifies which conditions are compensable. *** Any objection to the updated notice or appeal of denied conditions shall not delay claim closure pursuant to ORS 656.268. If a condition is found compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition."

The claimant may then accept the closure and the payment of benefits or, if the claimant objects to the terms of the notice of closure or the scope of the award, the worker may request reconsideration. See generally ORS 656.268 (5)(c) (describing requirements for notice of closure, including a statement regarding a claimant's right to request reconsideration). If the claimant's physical impairment is in dispute on reconsideration, then the Director of Consumer Business and Services (DCBS) must appoint a medical arbiter to consider the claim. See ORS 656.268(8)(a) ("If the basis for objection to a notice of closure issued under this section is disagreement with the impairment used in rating of the worker's disability, the director shall refer the claim to a medical arbiter appointed by the director.").

B. Facts and Procedural History

With that background in mind, we turn to the facts of this case. In 2010, claimant, then a school custodian, slipped on leaves at work and injured her right knee, thigh, and hip. Claimant filed a workers’ compensation claim with her employer and it was accepted for right hip, right knee, and right thigh strains.

In 2016, claimant was treated in the emergency department at Legacy Mount Hood for right knee pain resulting from another fall that had occurred at her workplace when she tripped over a piece of equipment, twisted her right knee, and landed with all her weight on that knee. Claimant filed a new workers’ compensation claim for that incident and that claim was accepted for a right knee strain. Claimant underwent arthroscopic partial medial meniscectomy surgery for a right knee medial meniscus tear that year.

In August 2018, claimant's doctor—the same one who had performed her 2016 knee surgery—conducted a closing evaluation of claimant's workers’ compensation claim. That doctor released claimant back to her job, effective as of September 2017, and indicated that claimant did not suffer significant limitations in the repetitive use of her right knee or leg. The notice of closure that followed that evaluation awarded two percent loss of the whole person for impairment to claimant's right knee, based on the surgical value associated with claimant's right knee surgery.

Claimant requested reconsideration of the notice of closure. An orthopedic surgeon, acting on SAIF's behalf, conducted a new evaluation of claimant's injury. A medical arbiter examination also took place. Despite the earlier findings from claimant's doctor, the medical arbiter found that claimant was significantly limited in the repetitive use of her right leg for more than two-thirds of an eight-hour work period and discovered that claimant suffered some additional loss of the use of her right knee in the form of reduced range of motion and decreased stability. The medical arbiter, however, attributed those findings entirely to non-work-related causes.² Accordingly, the order on reconsideration affirmed the previous notice of closure and the award for two percent whole person impairment.

Claimant then requested an administrative hearing concerning the extent of her impairment award. Following that hearing, the administrative law judge (ALJ) amended the order on reconsideration to recognize additional impairment for a chronic condition of the right knee that had not previously been calculated. The ALJ explained that the surgical value previously awarded should have been "combined with the 5 percent chronic condition impairment for the leg for a 10 percent impairment value for loss of the leg[,]" which converts to an award for 5 percent loss of the whole person. In short, the amended order on reconsideration modified the total permanent partial disability award to five percent whole person impairment. Based on the medical arbiter's conclusion that the reduced range of motion and decreased stability findings were unrelated to the compensable injury, the ALJ did not modify the permanent partial disability award to include any additional value for impairment related to those findings.

Claimant requested review of that decision by the Workers’ Compensation...