Wiggins v. SAIF

319

Argued and submitted December 18, 2018, reversed and remanded

October 30, 2019

In the Matter of the Compensation of

Keith J. Wiggins, Claimant.

Keith J. WIGGINS,

Petitioner,

v.

SAIF CORPORATION

and Conkraft Construction, Inc.,

Respondents.

Workers’ Compensation Board

1603000; A166090

453 P3d 603

Claimant petitions for judicial review of an order of the Workers’ Compen-

sation Board. In that order, the board concluded that claimant was not entitled

to an award of penalties and attorney fees under ORS 656.268(5)(f) or ORS

656.262(11) after determining that the form that SAIF Corporation provided to

claimant’s attending physician properly referred to the legal standard adopted

by the Workers’ Compensation Division (WCD) for a “chronic condition” impair-

ment award under OAR 436-035-0019. Claimant contends that the form did not

correctly articulate that standard. Held: The board erred in determining that

SAIF’s form correctly articulated the WCD standard, because the “Significant

limitation (more than 2/3 of the time)” check-the-box option on the form could

only mean that the worker is limited for more than two thirds of the time, which

is not the WCD standard. Broeke v. SAIF, 300 Or App 91, 98, 453 P3d 597 (2019).

Reversed and remanded.

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

the briefs was Thomas, Coon, Newton & Frost.

David L. Runner 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.

320 Wiggins v. SAIF

LAGESEN, P. J.

Claimant petitions for judicial review of an order

of the Workers’ Compensation Board. In that order, the

board concluded that claimant was not entitled to an award

of penalties and attorney fees under ORS 656.268(5)(f) or

ORS 656.262(11) after determining that a form that SAIF

Corporation provided to claimant’s attending physician

referred to the legal standard adopted by the Workers’

Compensation Division (WCD) for a “chronic condition”

impairment award under OAR 436-035-0019 and rejecting

claimant’s contention that the form did not correctly articu-

late the WCD standard. Because we conclude that the board

erred in determining that SAIF’s form correctly articulated

the WCD standard, we reverse and remand to the board for

reconsideration.

Some legal background is necessary for context.

Claimant seeks penalties and fees based on what claimant

contends was unreasonable behavior by SAIF in determin-

ing whether to award him a “chronic condition” impairment

value under OAR 436-035-0019. Pertinent to this case,

which centers on an injury to claimant’s right knee, that

rule provides:

“A worker is entitled to a 5% chronic condition impair-

ment value for [the upper leg from the knee and above],

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

upper leg from the knee and above].”

OAR 436-035-0019(1)(b). As we recently recounted in Broeke

v. SAIF, 300 Or App 91, 453 P3d 597 (2019), in Spurger v.

SAIF, 266 Or App 183, 537 P3d 883 (2014), we concluded

that the phrase “significantly limited” in that rule had not

been adequately defined by the board or the promulgating

agency, the WCD. We returned the case to the board so that

the deficiency could be corrected. Spurger, 266 Or App at

194-95; Broeke, 300 Or App at 97-98 (setting forth history).

Following our decision in Spurger, the director of

WCD issued an Industry Notice supplying the necessary

definition. In the notice, the director explained:

Cite as 300 Or App 319 (2019) 321

“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

436-035-0019(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

meaning’; ‘meaningful’ or ‘important; notable; valuable.’

See 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 the 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); Broeke, 300 Or App at 98. As we explained in Broeke,

the Industry Notice makes clear that

“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, 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 defer-

ence. See SAIF Corp. v. Eller, 189 Or App 113, 119, 74 P3d

1093 (2003) (WCD interpretation of WCD administrative

322 Wiggins v. SAIF

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

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

300 Or App at 98-99.

With that background in mind, we set forth the

facts related to the issue before us. We draw them from the

undisputed portions of 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).

Claimant has a work-related right knee injury for

which the accepted conditions are right knee sprain and

patellofemoral chondromalacia. In December 2015, respon-

dent SAIF, the insurer on the claim, sent a check-the-box form

to claimant’s treating physician and surgeon, Dr. Greenleaf.

On that form, SAIF asked, “Which of the following best

describes the patient’s ability to repetitively use the injured

knee due to the accepted conditions of right knee sprain and

right knee patellofemoral chondromalacia?” The form offered

Greenleaf potential check-the-box responses to that ques-

tion. The first potential response said “No limitation.” The

second said “Some limitation.” The third said “Significant

limitation (more than 2/3 of the time).” Greenleaf checked

the box next to “Some limitation.” Thereafter, SAIF closed

the claim without awarding a chronic condition impairment

value under OAR 436-035-0019.

Claimant requested reconsideration before the

Appellate Review Unit (ARU). In connection with the recon-

sideration process, claimant’s attorney wrote to Greenleaf

and provided him the interpretation of “significantly lim-

ited” that WCD had issued in its Industry Notice. The letter

explained that, under WCD’s interpretation, a worker is sig-

nificantly limited in the repetitive use of a body part, so as

to warrant a chronic condition impairment value, “when the

worker is unable to repetitively use the body part for more

than two-thirds of a period of time.” In response to that let-

ter, Greenleaf indicated that it was his “medical opinion

that [claimant] is unlikely to tolerate activities where he

would need to repetitively walk on uneven ground or twist,

turn or rotate his knee, go up and down stairs, squat, kneel,

Cite as 300 Or App 319 (2019) 323

run or jog for more than two-thirds of an eight-hour day.”

Based on that opinion, the ARU determined that claimant

was entitled to a chronic condition impairment value under

OAR 436-035-0019.

Thereafter, claimant requested a hearing before

an administrative law judge (ALJ) for the purpose of seek-

ing penalties and fees. Claimant’s theory was that SAIF’s

notice of closure was unreasonable because the form that

SAIF supplied to Greenleaf did not accurately reflect the

standard for a chronic condition award. In claimant’s view,

that made SAIF’s Notice of Closure unreasonable, entitling

him to a penalty and fees under ORS 656.268(5)(f) and ORS

656.382(1). Alternatively, claimant asserted that, by using

the form, SAIF unreasonably resisted the payment of com-

pensation, thereby entitling him to a penalty under OAR

656.262(11). The ALJ rejected those conditions, and claim-

ant sought review before the board, which also rejected

claimant’s claims for penalties and fees. Concluding that

SAIF did not act unreasonably in declining to award a

chronic condition impairment value at the time of claimant’s

claim closure, the board found that,

“[h]ere, SAIF’s inquiry to the attending physician,

Dr. Greenleaf, both addressed the standard set forth in

OAR 436-035-0019(1) (whether claimant had a ‘signif-

icant limitation’ in the repetitive use of his right knee)

and referred to the WCD’s interpretation of that standard

(‘more than 2/3 of the time’). Moreover, the attending phy-

sician was aware of the restrictions that he had placed

on claimant due to the accepted conditions, as well as

Dr. Baldwin’s examination findings, at the time SAIF pre-

sented the ‘chronic condition’ inquiry letter to him. SAIF

closed the claim based on the record at closure, including

Dr. Greenleaf’s opinion (as the attending physician) regard-

ing claimant’s lack of a significant limitation.

“After considering these particular circumstances, we

do not consider the Notice of Closure (which did not award

a ‘chronic condition’ permanent impairment value) to be

unreasonable.”

Claimant then petitioned for judicial review. On

review, claimant contends that the board erred in rejecting

his claims for penalties and fees. In particular, he contends

324 Wiggins v. SAIF

that the board erred in finding that SAIF’s form correctly

stated the chronic condition impairment standard as that

standard has been interpreted by WCD. Claimant contends

that this presents a question of law that we review under

ORS 183.482(8)(a) to determine whether the board “erro-

neously interpreted a provision of law.” Claimant contends

that, based on that error, the board erred further in reject-

ing his claims for penalties and fees.

SAIF responds that the board was correct to find

that SAIF’s form “was sufficient to communicate [the] stan-

dard” articulated in the WCD Industry Notice addressing

chronic condition impairment values. SAIF asserts that the

question whether its form correctly captured the standard

articulated in the WCD notice is a question of fact and that

we review the board’s determination on that point for sub-

stantial evidence under ORS 183.482(8)(c).

Regardless of whether we treat the question as

one of fact or, instead, as one of law, the board erred. And

regardless of whether we treat the question as one of fact or,

instead, as one of law, that error requires us to remand to

the board. See ORS 183.482(8)(a) (where agency has “errone-

ously interpreted a provision of law,” reviewing court shall

“[s]et aside or modify the order” or “[r]emand the case to

the agency for further action under a correct interpretation

of the provision of law”); ORS 183.482(8)(c) (where agency

order is not supported by substantial evidence, “court shall

set aside or remand the order”).

Treated as a question of fact, the board’s determina-

tion that SAIF’s form “referred to the WCD’s interpretation

of that standard (‘more than 2/3 of the time’)” is supported

by substantial evidence if “the record, viewed as a whole,

[would] permit[ ] a reasonable person to make the finding.”

Garcia v. Boise Cascade Corp., 309 Or 292, 294, 787 P2d 884

(1990). Viewing the record as a whole, a reasonable person

could not find that SAIF’s form refers to WCD’s interpreta-

tion of the chronic condition standard. SAIF’s form stated

“Significant limitation (more than 2/3 of the time).” The

only reasonable reading of that phrase is that a significant

limitation is one that limits a worker’s repetitive use of a

body part for more than two-thirds of a period of time. Said

Cite as 300 Or App 319 (2019) 325

differently, under the definition of the standard reflected

on SAIF’s form, a worker who is limited two-thirds of the

time or less, and who thus can repetitively use a body part

one-third of the time or more, does not have a significant

limitation.

That is not the standard articulated by WCD. Under

the WCD interpretation, a person is significantly limited in

the repetitive use of a body part if the person “can use the

body part repetitively for up to, but no more than, two-thirds

of the time.” Broeke, 300 Or App at 99 (emphasis in original).

That is, a person is significantly limited in the repetitive use

of a body part if the person “is restricted from repetitive use

of a body part for one-third or more of a period of time.” Id.

The result is the same if we treat the question as

one of law. Simply put, for the reasons already explained,

the significant-limitation standard recited on SAIF’s form

is not the same as WCD’s interpretation of the standard

and the board erred in concluding otherwise. We therefore

reverse and remand for the board to reconsider petition-

er’s claims for penalties and fees in view of our conclusion

that the board erred when it determined that SAIF’s form

referred to the WCD interpretation of the chronic condition

standard.

Reversed and remanded.