Broeke v. SAIF

91

Argued and submitted June 26, 2018, reversed and remanded October 16, 2019

In the Matter of the Compensation of

Brit L. Broeke, Claimant.

Brit L. BROEKE,

Petitioner,

v.

SAIF CORPORATION

and Chipman Corporation -

Chipman Moving & Storage,

Respondents.

Workers’ Compensation Board

1601590; A164499

453 P3d 597

Claimant appeals a final order of the Workers’ Compensation Board (WCB)

denying claimant’s occupational disease claims for plantar fasciitis in each of his

feet. Claimant assigns error to WCB’s determination that claimant is not entitled

to an award for “15% of the leg” under OAR 436-035-0230 or to a five percent

“chronic condition” award under OAR 436-035-0019. Claimant also requests pen-

alties and fees because respondent SAIF Corporation provided claimant’s treat-

ing physician with a misleading form when seeking information about claimant’s

limitations. Held: WCB’s conclusion as to the “15% of the leg” award was sup-

ported by substantial evidence and substantial reason, and therefore affirmed.

The Court of Appeals reversed and remanded as to the “chronic condition” award

and the penalties and fees claim because the WCB’s order failed to explain why

claimant’s significant difficulties using his feet to stand and walk do not rise to

the level of a significant limitation under OAR 436-035-0019, as the Workers’

Compensation Division has interpreted that rule.

Reversed and remanded.

James S. Coon argued the cause for petitioner. Also on

the briefs was Thomas, Coon, Newton & Frost.

Allison Lesh argued the cause and filed the brief for

respondents.

Before Lagesen, Presiding Judge, and DeVore, Judge, and

James, Judge.

LAGESEN, P. J.

Reversed and remanded.

92 Broeke v. SAIF

LAGESEN, P. J.

Claimant’s long-term employment in a warehouse

caused him to suffer from plantar fasciitis in each foot. That

resulted in a compensable occupational disease claim under

the Workers’ Compensation Law, ORS chapter 656. In this

proceeding for judicial review of a final order of the Workers’

Compensation Board,1 at issue is the extent of claimant’s

permanent disability from the plantar fasciitis. The pri-

mary questions before us on that point are (1) whether the

board erred in determining that claimant is not entitled to

an award for “15% of the leg” under OAR 436-035-0230 and

(2) whether the board erred in determining that claimant

is not entitled to a five percent “chronic condition” award

under OAR 436-035-0019. Also at issue is whether claimant

is entitled to penalties and fees because, in claimant’s view,

respondent SAIF Corporation provided claimant’s treating

physician with a misleading form when seeking informa-

tion about claimant’s limitations. We uphold the board’s 15

percent-of-the-leg determination, and reverse and remand

its chronic-condition determination. As to penalties and

fees, we conclude that SAIF’s form was misleading but leave

it to the board in the first instance to determine whether

penalties and fees are authorized and warranted under the

circumstances.

I. BACKGROUND

Although there are factual disputes relating to

claimant’s 15 percent-of-the-leg chronic-condition claims,

the facts giving context to the issues before us are not dis-

puted. We draw them from the board’s order, supplementing

with additional undisputed facts drawn from the evidence

in the record. Robin v. Teacher Standards and Practices

Comm., 291 Or App 379, 381, 421 P3d 385, rev den, 363 Or

677 (2018).

As noted, claimant suffers from work-related dis-

abling plantar fasciitis in both feet and has a compensable

occupational disease claim for the accepted conditions of

1

The board adopted in full an order by an administrative law judge (ALJ).

In view of that, we refer to the ALJ’s order as the board’s order.

Cite as 300 Or App 91 (2019) 93

right plantar fasciitis and left plantar fasciitis. SAIF is the

insurer on that claim.

In December 2015, SAIF issued a Notice of Closure

on the claim. Based on the opinion of claimant’s treating phy-

sician, Dr. Walters, SAIF determined that claimant’s plan-

tar fasciitis became medically stationary as of October 21,

2015. The Notice of Closure awarded four percent whole per-

son impairment for loss of range of motion to several toes on

the left foot and work disability of $16,056.54.

Claimant requested reconsideration by the Appellate

Review Unit (ARU) of the Workers’ Compensation Division,

as allowed by ORS 656.268. In its Order on Reconsideration,

the ARU affirmed the four percent whole person impairment

award but awarded an additional $2,676.09 in work disabil-

ity. The ARU did not award a 15 percent-of-the-leg impair-

ment value under OAR 436-035-0230(14), which provides

for that impairment value “[w]hen the worker cannot be on

his or her feet for more than two hours in an 8-hour period.”

The ARU also did not award a chronic condition impairment

value under OAR 436-035-0019(1)(a), which provides that

“[a] worker is entitled to a 5% chronic condition impairment

value for [the lower leg], when a preponderance of medical

opinion establishes that, due to a chronic and permanent

medical condition, the worker is significantly limited in the

repetitive use of [the lower leg].”

Claimant requested a hearing. At the hearing, he

contended that he was entitled to a 15 percent-of-the-leg

impairment value under OAR 436-035-0230(14), as well as a

five percent chronic condition impairment value under OAR

436-035-0019(1)(a), and that the ARU erred in concluding

otherwise. He argued further that the ALJ should assess

a penalty and fee under either ORS 656.268(5)(f) or ORS

656.382(1) if he concluded that claimant was entitled to a

chronic condition impairment value. Claimant also argued

that a penalty and fee were warranted because SAIF had

solicited information from Walters using a questionnaire

that was unreasonable in its format.

The ALJ disagreed. Addressing the 15 percent-of-

the-leg impairment value, the ALJ found that the evidence

was not persuasive that claimant could not be on his feet

94 Broeke v. SAIF

for more than two hours in an eight-hour period. The ALJ

discounted statements that Walters had made substantially

before claimant became medically stationary, reasoning

that those statements did not speak to claimant’s perma-

nent disability. As to Walters’s statements on or near the

time of claim closure, the ALJ determined that those state-

ments were equivocal. He explained:

“On October 21, 2015, Dr. Walters declared claimant’s

condition medically stationary and stated that he would

limit claimant to ‘standing walking 25% of the time and

[off his] feet 75% of the time.’

“Yet on November 18[,] 2015, Dr. Walters then indicated

that claimant was able to be on his feet for more than two

hours in an eight-hour period with respect to each foot/

ankle.

“At best then, I find Dr. Walters’s comments on the

asserted ‘walk/stand’ limit to be internally inconsistent

and equivocal. Even if Dr. Walters’s October 21, 2015 lim-

itation were interpreted to limit claimant to standing or

walking 25 percent of the time (2 hours in an 8-hour work

day), as opposed to more than two hours in an eight-hour

period, as specified by the rule, his later statement contra-

dicted that limitation.

“Therefore, I find no error in the ARU’s declining to

award a value for ‘walk/stand limits.’ ”

(Emphases in original; citations omitted.)

Addressing the chronic condition impairment value,

the ALJ found that claimant had not demonstrated that he

had “significant limitation” in the repetitive use of his feet/

ankles. The ALJ pointed to the fact that SAIF had given

Walters a check-the-box questionnaire that asked him to

specify whether claimant had “no limitation,” “some limita-

tion,” or “significant limitation (more than 2/3 of the time),”

in repetitive use of each foot/ankle. On that form, Walters

had marked “some limitation” with respect to each foot and

ankle. The ALJ further determined that the additional evi-

dence in the record was too equivocal to demonstrate that

claimant was significantly limited in the repetitive use of

his feet and ankles. He noted that Walters had explained

that the limitations on claimant’s ability to repetitively use

Cite as 300 Or App 91 (2019) 95

his feet and ankles depended on that activity in which claim-

ant was engaged. Accordingly, the ALJ found “no error in

the Order on Reconsideration’s declining to award a ‘chronic

condition’ value.”

Finally, addressing the penalty and fee issues, the

ALJ explained that his rejection of claimant’s chronic con-

dition claim meant that claimant was not entitled to a pen-

alty and fee based on SAIF’s omission of a chronic condition

impairment value. The ALJ also rejected claimant’s conten-

tion that the allegedly unreasonable nature of SAIF’s ques-

tionnaire was something that warranted a penalty and fee.

Claimant appealed to the board. The board adopted

the ALJ’s order in its entirety. Claimant petitioned for judi-

cial review under ORS 656.298.

On review, claimant contends that (1) the board’s

determination that claimant had not demonstrated that

he could not stand more than two hours in an eight-hour

period is not supported by substantial evidence or substan-

tial reason; (2) the board’s determination that claimant does

not have a significant limitation on the repetitive use of

his feet/ankles is based on an erroneous understanding of

OAR 436-035-0019(1)(a) and not supported by substantial

evidence and substantial reason; (3) claimant is entitled to

a penalty and fee in the event that we reverse the board’s

chronic condition determination; and (4) claimant is entitled

to a penalty and fee because SAIF’s questionnaire was mis-

leading in how it defined what a significant limitation was

for the purpose of OAR 436-035-0019. SAIF responds that

the board’s order is correct in all respects.

II. ANALYSIS

We address claimant’s contentions in turn, review-

ing under the standards set forth in ORS 183.482(8). ORS

656.298.

A. 15 Percent of the Leg

OAR 436-035-0230(14) authorizes an impairment

award to a worker who is restricted in standing and walk-

ing. It provides that, “[w]hen the worker cannot be on his

or her feet for more than two hours in an 8-hour period,

96 Broeke v. SAIF

the award is 15% of the leg.” Pointing to the evidence that

Walters opined at the time of closing that claimant should

be on his feet at work only 25 percent of the time and off his

feet the remaining 75 percent of the time, claimant contends

that either the board must have based its decision on an

erroneous interpretation of the rule or, alternatively, that

the board’s determination is not supported by substantial

evidence. That is because it is clear, in claimant’s view, that

claimant can be on his feet for at most two hours in an eight-

hour period and “cannot be on his * * * feet for more than two

hours in an 8-hour period,” as OAR 436-035-0230(14) pro-

vides. (Emphasis added.) In urging us to conclude that the

board applied an erroneous legal standard, claimant points

to the fact that, in its Order on Reconsideration, the ARU

explained that claimant was not entitled to an impairment

value under the rule because claimant could be on his feet

for exactly two hours but not more than two hours.

We agree with claimant that the ARU’s explanation

reflects a misunderstanding of the rule, which, by its plain

terms, provides for a 15 percent-of-the leg impairment value

for anyone who “cannot be on his or her feet for more than

two hours in an 8-hour period,” a set of people that neces-

sarily includes those who can be on their feet for exactly

two hours in an eight-hour period, but not more than that.

(Emphasis added.) We disagree, however, that the board’s

decision reflects the same mistake. Although some of the

board’s explanation is not entirely clear, we understand the

board’s rejection of claimant’s 15 percent-of-the-leg impair-

ment claim to rest on evidence that Walters opined at the

time that claimant’s condition became medically stationary

that claimant could be on his feet for more than two hours

in an eight-hour period. Walters opined that claimant could

be on his feet 20 minutes per hour, which equates to 160

minutes (two hours, 40 minutes) in an eight-hour period.

Walters also opined directly that claimant was able to be

on his feet for more than two hours in an eight-hour period

with respect to each foot/ankle. In view of that evidence,

the board’s determination that claimant was not entitled to

the 15 percent-of-the-leg impairment is supported by sub-

stantial evidence in the record as a whole. See Garcia v.

Boise Cascade Corp., 309 Or 292, 294, 787 P2d 884 (1990)

Cite as 300 Or App 91 (2019) 97

(“Substantial evidence supports a finding when the record,

viewed as a whole, permits a reasonable person to make the

finding.”).

Claimant also contends that the board’s rejection

of an impairment value under OAR 436-035-0230(14) is not

supported by substantial reason. “An agency’s decision is

supported by substantial reason if the decision ‘suppl[ies] an

explanation connecting the facts of the case and the result

reached.’ ” Akins v. SAIF Corp., 286 Or App 70, 76, 398 P3d

463, rev den, 362 Or 94 (2017) (quoting Rogue Advocates v.

Jackson County, 282 Or App 381, 389, 385 P3d 1262 (2016)).

The board’s decision meets that standard here, as it explains

that Walters’s statements regarding claimant’s ability to be

on his feet for more than two hours in an eight-hour period

are the reason why the board was not convinced that claim-

ant cannot be on his feet for more than two hours in an

eight-hour period.

B. Chronic Condition

We start with an overview of the law, because

chronic condition impairment values have been the subject

of several recent decisions of this court that are pertinent to

our resolution of claimant’s assignment of error.

OAR 436-035-0019 governs chronic condition impair-

ment values for different body parts. OAR 436-035-0019(1)(a)

addresses the lower leg, providing that “[a] worker is entitled

to a 5% chronic condition impairment value for [the lower

leg], when a preponderance of medical opinion establishes

that, due to a chronic and permanent medical condition, the

worker is significantly limited in the repetitive use of [the

lower leg].”

In Spurger v. SAIF Corp., 266 Or App 183, 337 P3d

883 (2014) (Spurger I), we concluded that the order on review,

which involved chronic condition impairment value under

OAR 436-035-0019, was not supported by substantial rea-

son because the agency had failed to supply an adequate

explanation of what the term “significantly limited” means

in OAR 436-035-0019. 266 Or App at 194-95. We rejected

the claimant’s request to supply a judicial interpretation of

98 Broeke v. SAIF

the term, reasoning that doing so “is, in the first instance,

the province of the agency that promulgated it.” Id. at 195.

Following our decision in Spurger I, the director

of the Workers’ Compensation Division (WCD), the agency

that promulgated the rule, issued an Industry Notice that

explained the agency’s interpretation of OAR 436-035-0019.

In the notice, the director explained:

“This notice explains how WCD will determine ‘whether

the limitations described in the medical-opinion evidence

show that the worker is significantly limited’ under OAR

436-036-0019(1). ‘Significantly limited’ is defined by nei-

ther rule nor statute. Absent statutory and administrative

definition, we look to a term’s plain meaning. ‘Significant’ is

defined, most relevantly, as ‘having or expressing a mean-

ing’; ‘meaningful’ or ‘important; notable; valuable.’ See

The American Heritage Dictionary, New College Edition;

see also, Webster’s II New College Dictionary. ‘Limited’ is

defined as ‘confined or restricted.’ Id.

“In applying those definitions to OAR 436-035-0019(1),

it is necessary to establish when a confinement or restric-

tion to the ‘repetitive use’ of a body part is important,

meaningful, or notable. In the context of work restrictions,

a repetitive use limitation is generally compensable when

the worker is limited to ‘frequent’ repetitive use or action.

Although OAR 436-035-0019(1) provides an award for

impairment, WCD finds it reasonable to adopt an equiv-

alent standard for the limited purpose of defining when

a confinement or restriction is important, meaningful,

or notable. Accordingly, WCD will interpret confined or

restricted (‘limited’) ‘repetitive use’ under OAR 436-035-

0019(1) as important, meaningful, or notable (‘significant’)

when the worker is limited to frequent use of the body part.

Consistent with the use of this term in the context of work

restrictions, frequent means the ability to use the body

part for up to two-thirds of a period of time.”

Industry Notice, Workers’ Compensation Division (Dec 22,

2014).

Thus, as interpreted by WCD, OAR 436-035-0019

authorizes a chronic condition impairment value for a

worker who can repetitively use the body part at issue for

at most two-thirds of a period of time. Said another way,

Cite as 300 Or App 91 (2019) 99

under WCD’s interpretation, a worker who is restricted from

repetitive use of a body part for one-third or more of a period

of time is entitled to a chronic condition impairment value.

WCD’s interpretation of the rule is a plausible one, given the

rule’s text and context, and, for that reason, is entitled to

deference. See SAIF Corp. v. Eller, 189 Or App 113, 119, 74

P3d 1093 (2003) (WCD interpretation of WCD administra-

tive rule is entitled to deference if plausible, given the rule’s

text, context, and other relevant sources of law).

With that background in mind, we turn to claim-

ant’s contentions regarding the board’s failure to award a

chronic condition impairment value. Claimant contends that

the board’s decision is not supported by substantial evidence

because, in claimant’s view, it was unreasonable for the

board to place any weight on the fact that Walters did not

mark “significant limitation” on SAIF’s questionnaire. In

claimant’s view, SAIF’s questionnaire was misleading as to

the meaning of “significant limitation” because it said “sig-

nificant limitation (more than 2/3 of the time).” That phras-

ing, claimant argues, suggests erroneously that a worker’s

limitation on repetitive use must extend to more than two-

thirds of the time, contrary to WCD’s interpretation of the

rule, which provides for a chronic condition impairment

award for a worker who can use the body part repetitively

for up to, but no more than, two-thirds of the time.

Claimant also argues that the board’s determina-

tion is not supported by substantial reason, because it is

undisputed that claimant cannot use his feet for standing

and walking most of the time—as noted in the discussion

of the “15%-of-the-leg” impairment value, Walters’s most

generous assessment of claimant’s ability to use his feet for

standing and walking allowed for him to be on his feet at

most one-third of the time. In support of his substantial rea-

son argument, claimant relies on our decision in Spurger v.

SAIF Corp., 292 Or App 227, 423 P3d 121 (2018) (Spurger II).

In Spurger II, we remanded to the board on the ground that

its order still was not supported by substantial reason, as

we had concluded in Spurger I. 292 Or App at 231. We noted

that the medical evidence established that the claimant

had difficulty performing “repetitive squatting, walking long

100 Broeke v. SAIF

distances, and static standing,” but the board’s order failed

to explain why those limitations did not constitute a signifi-

cant limitation. Id. at 228, 231.

We agree with claimant’s substantial reason argu-

ment. The board’s order in this case suffers from the same

deficiency as did the order in Spurger II. It is undisputed

that claimant has great difficulties using his feet to stand

and walk. Yet, the board’s order does not explain why those

difficulties fail to rise to the level of a significant limitation

under OAR 436-035-0019, as WCD has interpreted it. We

must therefore reverse and remand to the board for recon-

sideration, as we did in Spurger II. Id. at 231. On reconsid-

eration, the board should take into account the fact that the

questionnaire that SAIF provided to Walters appears to use

the term “significant limitation” in a manner that conflicts

with WCD’s interpretation of OAR 436-035-0019, creating

the risk that Walters did not understand “significant limita-

tion” to have the meaning that WCD has given to it.

C. Penalties and Fees

Claimant contends that he was erroneously denied a

chronic condition impairment value and should be awarded

a penalty and fees for that reason. Claimant also contends

that SAIF’s questionnaire warrants an award of a penalty

and fees, although, in his opening brief to us, claimant did

not cite any statutory source of authority for such an award.

In view of the fact that we are reversing and remanding for

reconsideration of the chronic condition issue, we leave it to

the board to assess claimant’s claims for penalties and fees

in the first instance, following reconsideration.

Reversed and remanded.