Precision Castparts Corp - PCC Structurals v. Cramer

18

Argued and submitted October 28, affirmed December 1, 2021

In the Matter of the Compensation of

Melonie Cramer, Claimant.

PRECISION CASTPARTS CORP -

PCC STRUCTURALS,

Petitioner,

v.

Melonie CRAMER,

Respondent.

Workers’ Compensation Board

1902199, 1901872; A174551

502 P3d 1189

Employer petitions for judicial review of a final order of the Workers’

Compensation Board. Employer asserts that the board applied the wrong stan-

dard in its review of the Appellate Review Unit’s (ARU) order on reconsideration

because the ARU declined to consider the medical arbiter report in its impairment

determination, and thus, employer claims, the board should have reviewed for

abuse of discretion. Instead, the board made a de novo determination of impair-

ment based on the record at reconsideration and the medical arbiter report.

Held: All relevant authority provides that the board reviews de novo upon the

entire record, including any arbiter report prepared in the course of the adminis-

trative proceedings. Therefore, the board was not required to assess whether the

ARU abused its discretion when it declined to consider the arbiter report.

Affirmed.

Rebecca A. Watkins argued the cause for petitioner. Also

on the opening brief was Sather, Byerly & Holloway, LLP.

Also on the reply brief was SBH Legal.

Julene M. Quinn argued the cause and filed the brief for

respondent.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

LAGESEN, P. J.

Affirmed.

Cite as 316 Or App 18 (2021) 19

LAGESEN, P. J.

Employer petitions for judicial review of a final

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

the board affirmed an administrative law judge’s (ALJ)

order which upheld the closure findings in an order on

reconsideration by the Appellate Review Unit (ARU) but

found that claimant was entitled to 15 percent whole per-

son permanent impairment from a workplace injury to her

shoulder. Employer raises two assignments of error, assert-

ing first that the board applied the wrong standard in its

review of the ARU’s order, and second that the board did not

sufficiently support its determinations with substantial evi-

dence and substantial reason. We reject without discussion

the substantial evidence and substantial reason challenge.

With respect to the board’s standard of review, we find no

error and affirm.

Some factual background, which we draw from the

board’s uncontested findings and the procedural record, is

necessary for context.1 In 2018, employer accepted claim-

ant’s right shoulder strain as compensable. Over the course

of the workers’ compensation claim, claimant was treated

and evaluated by several doctors. Most relevant to the issue

of rating claimant’s impairment, claimant was examined by

Jones, an independent consulting physician, in September

2018. Jones found claimant’s accepted condition to be med-

ically stationary without impairment. However, he also

found claimant’s range of motion (ROM) to be “variable and

fraught with variable effort and variable validity and reli-

ability,” possibly because of fear of pain. He concluded that

the findings were invalid for rating impairment.

Dr. Kerfoot, claimant’s attending physician for pur-

poses of the workers’ compensation claim, concurred in

Jones’s report that claimant was medically stationary but

also noted permanent work restrictions. Given the finding

that claimant was medically stationary, employer issued a

Notice of Closure, declaring claimant medically stationary

1

The board adopted and supplemented the order of the ALJ. In referring to

the board’s findings, we refer both to the board’s supplemental findings and to

the findings of the ALJ that the board adopted. Similarly, our references to the

board’s order include the ALJ’s order that the board adopted and supplemented.

20 Precision Castparts Corp - PCC Structurals v. Cramer

as of September 26, 2018, and awarding temporary disabil-

ity compensation but no permanent whole person impair-

ment or work disability compensation. Claimant requested

reconsideration before the ARU.

The ARU selected a medical arbiter panel that

examined claimant in February 2019. The arbiters found

reduced right shoulder ROM and concluded that claimant

was significantly limited in the repetitive use of the right

shoulder. The arbiters concluded that the findings were

valid for the purpose of rating impairment and attributed

the ROM limitation and limitation in the repetitive use of

the right shoulder wholly to the accepted right shoulder

strain and direct medical sequelae. The initial arbiter report

did not declare whether or not the claimant’s condition was

medically stationary. The arbiters subsequently responded

to a request from the ARU, indicating that claimant was

not medically stationary at the time of their examination by

checking a box that said “No” on the ARU form.

Upon receiving the arbiters’ determination that

claimant was not medically stationary at the time of their

examination, the ARU requested the parties to agree to

postponement of the reconsideration process. Claimant’s

attorney did not agree to postponement. Citing to OAR 436-

030-0165(9)(b),2 the ARU determined that it would not con-

sider the arbiters’ evaluation and, instead, that “the claim

shall be reviewed based on the record at the time of claim

closure.” On that record, the ARU found that claimant was

medically stationary since September 26, 2018, and that

Kerfoot’s concurrence with the previous physician’s report

provided sufficient information to determine the extent of

permanent disability without consulting the arbiter report.

Further, the ARU found that claimant was not entitled to

permanent whole person impairment or work disability

compensation. The order modified claimant’s temporary dis-

ability award, but otherwise affirmed the notice of closure.

Claimant requested a hearing.

2

OAR 436-030-0165(9)(b) (Jan 1, 2018) provides that “[i]f deferral is not

appropriate, at the director’s discretion either a medical arbiter examination

or a medical arbiter record review may be obtained, or the director may issue

an Order on Reconsideration based on the record available at claim closure and

other evidence submitted in accordance with ORS 656.268(6).”

Cite as 316 Or App 18 (2021) 21

The ALJ determined that the notice of closure was

appropriate but that claimant was entitled to 15 percent

whole person permanent impairment. The ALJ agreed with

the ARU that Kerfoot’s concurrence was reliable to deter-

mine closure. In reaching its conclusion on impairment, the

ALJ relied on the arbiters’ examination, determining that

it was more persuasive than the other medical evidence,

including Kerfoot’s concurrence. Employer appealed the

ALJ’s order to the board, contending that the impairment

findings of Kerfoot (which had ratified the earlier physician’s

findings) were more accurate, and that the ALJ’ s whole per-

son impairment award should be reversed.

In its order on review, the board adopted and

affirmed the ALJ’s order, with supplemental analysis con-

cerning permanent impairment. We write to address employ-

er’s contention that the board applied the wrong standard in

its review of the ARU’s order.

In that assignment of error, employer points out

that, because claimant did not agree to the ARU’s request

to postpone reconsideration until she was medically station-

ary, the ARU made a discretionary call under OAR 436-

030-0165(9) (Jan 2, 2018) to rely only on the record at the

time of closure to rate permanent impairment, declining to

consider the arbiters’ examination. In employer’s view, that

exercise of discretion means that, in reviewing the ARU’s

order, the board had to first determine whether the ARU

abused its discretion in limiting its review to the record at

the time of closure when making its impairment decision.

Employer’s contention that the board was required

to evaluate whether the ARU abused its discretion fails in

the face of statutes and rules that (1) give the ALJ and the

board de novo review of the ARU’s impairment determina-

tion on (2) a record that must include any examination by an

arbiter.

Regarding the standard of review, as we have rec-

ognized, “[r]eview of a disability-extent determination at

a hearing before an ALJ and on review before the Board

is de novo.” Marvin Wood Products v. Callow, 171 Or App

175, 180, 14 P3d 686 (2000). That standard follows from the

statutes and the board’s administrative rule governing the

22 Precision Castparts Corp - PCC Structurals v. Cramer

review process. Under ORS 656.268(6)(g), a party dissatis-

fied with an ARU reconsideration order is entitled to a hear-

ing before an ALJ under ORS 656.283. At that hearing, the

ALJ must make a de novo assessment of disability by con-

sidering the evidence in the record, in light of the adminis-

trative rules adopted by the Director of the Department of

Consumer and Business Services: “The Administrative Law

Judge shall apply to the hearing of the claim such standards

for evaluation of disability as may be adopted by the direc-

tor pursuant to ORS 656.726.” ORS 656.283(6). See also

OAR 436-001-0225(1)(a) (with few enumerate exceptions,

“[t]he administrative law judge reviews all matters within

the director’s jurisdiction de novo”). If a party appeals an

ALJ’s order, the board’s review is also de novo. As with an

ALJ’s review, “[t]he board shall apply to the review of the

claim such standards for the evaluation of disability as may

be adopted by the Director of the Department of Consumer

and Business Services pursuant to ORS 656.726.” ORS

656.295(5). See also OAR 438-011-0015(1) (in all cases

reviewed by the board pursuant to a request under ORS

656.295, “[r]eview by the Board is de novo upon the entire

record.”). Said another way, under the relevant statutes, the

ALJ and the board do not review the ARU’s application of

the rules with any sort of deference. Rather, the ALJ and

the board apply those rules directly in evaluating the evi-

dence themselves.

As for the record considered by the ALJ on review

of the ARU’s impairment determinations, ORS 656.283(6)

permits either party to “present the reconsideration record

at hearing to establish * * * that the standards adopted pur-

suant to ORS 656.726 for evaluation of the worker’s perma-

nent disability were incorrectly applied in the reconsider-

ation order pursuant to ORS 656.268.” The same scope of

review applies to the board. ORS 656.295(5). Significantly,

for purposes of this case, the reconsideration record may

necessarily include “any” arbiter report prepared in the

course of the administrative proceedings. ORS 656.268

(6)(f) (2017), amended by Or Laws 2017, ch 68, § 1. See also

ORS 656.268(8)(g) (2017) (arbiter report “must be submitted

to the director for reconsideration”). Agency rules also allow

for new evidence in the course of ALJ and board review.

Cite as 316 Or App 18 (2021) 23

OAR 436-001-0225(1)(b) (ALJ review); OAR 438-011-0015(1)

(board review).

For these reasons, the board was not required to

assess whether the ARU abused its discretion when it

declined to consider the arbiters’ examination when eval-

uating claimant’s impairment. Instead, the board properly

relied on the examination in making its own de novo deter-

mination of impairment.

Affirmed.