Deschutes County v. Leak

396

Argued and submitted January 8, 2021, affirmed October 19, 2022

In the Matter of the Compensation of

Timothy Leak, Claimant.

DESCHUTES COUNTY,

Petitioner,

v.

Timothy LEAK,

Respondent.

Workers’ Compensation Board

1804591; A172526

519 P3d 1277

Employer Deschutes County seeks judicial review of an order of the Workers’

Compensation Board that awarded claimant benefits for impairment on his com-

pensable claim for post-traumatic stress disorder (PTSD), contending that the

board erred in classifying claimant’s impairment level as Class 2 under OAR

436-035-0400, and also erred in classifying claimant’s job at the time of injury

as “deputy sheriff” for purposes of determining claimant’s work disability ben-

efit. Held: Substantial evidence supports the determination by the Workers’

Compensation Board that claimant’s level of impairment for PTSD is properly

categorized as Class 2 and that his job at the time of injury was “deputy sheriff”

for purposes of determining claimant’s work disability benefit.

Affirmed.

Rebecca A. Watkins argued the cause for petitioner. Also

on the briefs was Sather, Byerly & Holloway, LLP.

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

respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

POWERS, J.

Affirmed.

Cite as 322 Or App 396 (2022) 397

POWERS, J.

Employer Deschutes County seeks judicial review of

an order of the Workers’ Compensation Board that awarded

claimant benefits for impairment on his compensable claim

for post-traumatic stress disorder (PTSD), contending that

the board erred in classifying claimant’s impairment level

as Class 2 under OAR 436-035-0400, and also erred in clas-

sifying claimant’s job at the time of injury as “deputy sher-

iff” for purposes of determining claimant’s work disability

benefit. We review the board’s interpretation of the applica-

ble statutes and administrative rules for error of law, ORS

183.482(8)(a), and the board’s findings for substantial evi-

dence under ORS 183.482(8)(c). As explained below, we affirm

the board’s determination of claimant’s level of impairment.

We further conclude that the board’s determination of work

disability is supported by substantial evidence. Accordingly,

we affirm.

Claimant, who worked for employer as a deputy

sheriff, was on administrative leave for a disciplinary mat-

ter when he began to suffer symptoms of PTSD. Claimant

attributed his symptoms to traumatic experiences in his

work as a patrol officer for employer. Employer ultimately

accepted the claim.

Claimant’s symptoms improved with therapy and

medication. Claimant became medically stationary, and his

physician, Dr. Thibert, released him for a “trial” of light

work. Claimant, however, did not return to work, because he

retired while on administrative leave. Employer closed the

claim with an award of temporary disability, but without an

award of permanent disability benefits, based on a determi-

nation that claimant’s residual symptoms from PTSD were

within the Class 1 category, as described in OAR 436-035-

0400(5)(a) (2018), which provides for an impairment rating

of zero.1

1

OAR 436-035-0400(3) (2018) describes the physician’s evaluation in deter-

mining a worker’s impairment as a result of work-related mental illness and

provides:

“The physician describes permanent changes in mental function in terms

of their [e]ffect on the worker’s activities of daily living (ADLs), as defined in

OAR 436-035-0005(1). Additionally, the physician describes the [e]ffect on

398 Deschutes County v. Leak

Claimant sought reconsideration with the Appellate

Review Unit (ARU) but did not request a medical arbiter.

Thibert, claimant’s attending physician, provided opinions

that, at the time claimant became medically stationary, he

had “little to no permanent residual symptoms day to day

in his personal life with little to no treatment necessary,”

but “may need ongoing medications and occasional therapy

to address waxing and waning of his [PTSD] symptoms.”

Thibert opined that claimant’s residual symptoms were

“appropriately classified” as Class 1. Thibert further opined

that, if claimant were to return to the patrol job he held

social functioning and deterioration or decompensation in work or work-like

settings.

“(a) Social functioning refers to an individual’s capacity to interact

appropriately, communicate effectively, and get along with other individuals.

“(b) Deterioration or decompensation in work or work-like settings refers

to repeated failure to adapt to stressful circumstances, which causes the

individual either to withdraw from that situation or to experience exacerba-

tions with accompanying difficulty in maintaining ADL, social relationships,

concentration, persistence, pace, or adaptive behaviors.”

OAR 436-035-0400(5) describes the “classes” of impairment for loss of func-

tion attributable to work-related mental illness and provides, in part:

“Loss of function attributable to permanent symptoms of affective disor-

ders, anxiety disorders, somatoform disorders, and chronic adjustment disor-

ders is rated under the following classes, with gradations within each class

based on the severity of the symptoms/loss of function:

“(a) Class 1: 0% when one or more of the following residual symptoms are

noted:

“(A) Anxiety symptoms: Require little or no treatment, are in response

to a particular stress situation, produce unpleasant tension while the stress

lasts, and might limit some activities.

“(B) Depressive symptoms: The ADL can be carried out, but the worker

might lack ambition, energy, and enthusiasm. There may be such depres-

sion-related, mentally-caused physical problems as mild loss of appetite and

a general feeling of being unwell.

“* * * * *

“(b) Class 2: minimal (6%), mild (23%), or moderate (35%) when one or

more of the following residual symptoms/loss of functions are noted:

“(A) Anxiety symptoms: May require extended treatment. Specific

symptoms may include (but are not limited to) startle reactions, indecision

because of fear, fear of being alone, and insomnia. There is no loss of intellect

or disturbance in thinking, concentration, or memory.

“(B) Depressive symptoms: Last for several weeks. There are distur-

bances in eating and sleeping patterns, loss of interest in usual activities,

and moderate retardation of physical activity. There may be thoughts of sui-

cide. Self-care activities and personal hygiene remain good.”

Cite as 322 Or App 396 (2022) 399

before going on administrative leave, his symptoms would

likely return to the Class 2 level.2

The ARU explained that an evaluation of a claim-

ant’s impairment is limited to consideration of symptoms

that the claimant is experiencing at the time of claim clo-

sure, see ORS 656.283(6) (“Evaluation of the worker’s dis-

ability by the Administrative Law Judge shall be as of the

date of issuance of the reconsideration order pursuant to

ORS 656.268.”), and that, in determining claimant’s impair-

ment, it could not consider impairment that Thibert opined

claimant would likely experience if claimant returned

to a patrol job. Accordingly, the ARU upheld the notice of

closure.3

Claimant requested a hearing, asserting that the

likelihood that claimant’s symptoms would become worse if

he returned to work is a part of claimant’s current disabil-

ity and therefore should be considered in an evaluation of

his impairment. The administrative law judge (ALJ) upheld

the ARU’s order, reasoning that the ARU was entitled to

2

Thibert signed a concurrence letter from employer’s attorney, agreeing

that claimant has remained medically stationary since March 17, 2017. He also

endorsed the following statement:

“Your opinion regarding permanent impairment attributable to the PTSD is

also unchanged, although you qualified your response. [Claimant] has little

residual symptoms as long as he has not returned to his job with Deschutes

County Sheriff’s Office (DCSO). There has been little to no permanent resid-

ual symptoms day to day in his personal life with little to no treatment neces-

sary, and even his flare-up that was discussed in your December, 2017 chart

note was related to interactions with DCSO. If he does not return to his for-

mer position with DCSO, his residual symptoms are appropriately classified

as Class 1. If he returns to, and remains at, his job-at-injury with DCSO, you

strongly suspect he would have residual symptoms more in the category of

Category 2, mild or moderate.”

Thibert also signed a concurrence letter, prepared by claimant’s attorney, in

which he agreed that, if claimant were to return to his job at injury, “he would

likely suffer deterioration or decomposition of his residual PTSD symptoms ‘with

accompanying difficulty in maintaining ADLs, social relationships, concentra-

tion persistence, pace, or adaptive behaviors.”’

3

The ARU explained:

“[T]hese rules [do] not allow an impairment value for preventative or precau-

tionary limitations based on a medical opinion that the causation for such

a limitation is to prevent the future possibility or ‘risk’ of further injury.

Rather, permanent impairment is established based on the worker’s condi-

tion at the time of claim closure and issuance of the reconsideration, not med-

ical evidence of a speculative nature for prevention of further injury.”

400 Deschutes County v. Leak

deference on its plausible interpretation of OAR 436-035-

0400 that impairment does not include symptoms that do

not exist at the time of claim closure. The ALJ further con-

cluded, based on an independent evaluation of the record,

that claimant had not met his burden to prove that his

symptoms as of the date of the reconsideration order met

the criteria of Class 2.4

The board reversed the ALJ’s order. The board rea-

soned that, under OAR 436-035-0400(3), an evaluation of

claimant’s impairment requires a consideration of whether

claimant would experience “[d]eterioration or decompen-

sation in work or work-like settings.” The board concluded

that Thibert’s opinion supported findings that claimant had

experienced symptoms within the Class 2 category, includ-

ing insomnia and a loss of interest in activities, and that,

if he returned to his former patrol job, claimant would con-

tinue to experience those symptoms and “his PTSD symp-

toms would deteriorate or decompensate in work or work-

like setting.” The board did not view Thibert’s opinion as

speculative but, rather, “analogous to a physical limitation

imposed by an attending physician on an injured claim-

ant.” The board determined that claimant’s impairment fell

within Class 2 and awarded benefits accordingly.

Employer seeks judicial review. In its first assign-

ment, employer contends that the board’s order, specifically

its conclusion that an evaluation of impairment includes con-

sideration of possible worsened symptoms if claimant were

to return to his former patrol job, depends on an unreason-

able construction of OAR 436-035-0400 and, further, that

the board erred in failing to defer to the ARU’s plausible

construction of that rule. Employer raised that issue before

the board, and the board explained that the ARU’s order was

not a construction of the administrative rule but an inter-

pretation of the evidence. Claimant argues that the board

correctly understood that the ARU’s order was based on its

interpretation of the medical evidence, and that the board

correctly determined, on its de novo review, that claimant is

entitled to impairment at the Class 2 level.

4

The ALJ noted that impairment is established based on objective findings

of the attending physician at the time of claim closure.

Cite as 322 Or App 396 (2022) 401

OAR 436-035-0400 (2018) was promulgated by the

Workers’ Compensation Division (WCD) of the Department

of Consumer and Business Services, of which the ARU is a

part. Employer is correct that the ARU’s plausible interpre-

tation of a WCD rule is entitled to deference. Don’t Waste

Oregon Committee v. Energy Facility Siting, 320 Or 132, 142,

881 P2d 119 (1994) (explaining that, under ORS 183.482(8)(a),

a reviewing court will defer to an agency’s interpretation of

its own administrative rule if that interpretation is plau-

sible); Godinez v. SAIF, 269 Or App 578, 582, 346 P3d 530

(2015) (explaining that deference to an agency’s plausible

interpretation of its own rules includes “an interpretation

made in the course of applying the rule, if that interpre-

tation is not inconsistent with the wording of the rule, its

context, or any other source of law”). Thus, the first issue

that we address is whether, as the ALJ reasoned, the ARU’s

order provided a plausible interpretation of OAR 436-035-

0400 that was entitled to deference or, as the board rea-

soned, the ARU merely interpreted the evidence.

We begin our analysis with ORS 656.214(1)(c), which

provides that a worker’s permanent partial disability is

“[p]ermanent impairment resulting from the compensable

industrial injury or occupational disease.” ORS 656.214(1)(a),

in turn, defines “impairment” to mean “the loss of use or

function of a body part or system due to the compensable

industrial injury.” Thus, the determination of permanent

partial disability requires a determination of a worker’s per-

manent impairment as a result of the injury or occupational

disease, which, in this case, is PTSD, a mental illness.

OAR 436-035-0400(3) (2018) describes the determi-

nation of impairment resulting from a compensable mental

illness. It requires the physician to identify the worker’s

“permanent changes” as a result of work-related mental

illness:

“The physician describes permanent changes in mental

function in terms of their [e]ffect on the worker’s activities

of daily living (ADLs), as defined in OAR 436-035-0005(1).

Additionally, the physician describes the [e]ffect on social

functioning and deterioration or decompensation in work

or work-like settings.

402 Deschutes County v. Leak

“(a) Social functioning refers to an individual’s capac-

ity to interact appropriately, communicate effectively, and

get along with other individuals.

“(b) Deterioration or decompensation in work or work-

like settings refers to repeated failure to adapt to stressful

circumstances, which causes the individual either to with-

draw from that situation or to experience exacerbations

with accompanying difficulty in maintaining ADL, social

relationships, concentration, persistence, pace, or adaptive

behaviors.”

In directing the physician to evaluate “permanent changes,”

OAR 436-035-0400(3) (2018) does not address merely the

worker’s symptoms at the time of claim closure. Rather, the

subsection requires an evaluation of the worker’s permanent

condition as of the time of closure, specifically including the

effects of the permanent changes on activities of daily living

and on social functioning and deterioration or decompensa-

tion in work or work-like settings. Thus, even if a person is

not working at the time of claim closure, that evaluation still

encompasses, as Thibert concluded, whether, if the worker

were to be exposed to work or a work-like setting, the worker

would experience deterioration or decompensation.

As we understand the ARU’s reason for disregard-

ing Thibert’s opinion, it took the view that OAR 436-035-

0400(3) (2018) requires an evaluation of only current symp-

toms. The ARU’s order did not explicitly provide that it was

interpreting OAR 436-035-0400 (2018); however, we under-

stand the ARU’s explanation to be an implicit interpreta-

tion of OAR 436-035-0400(3) and (5). That construction,

we conclude, is inconsistent with the rule’s unambiguous

text, which requires an evaluation of the worker’s perma-

nent condition, not merely the worker’s current symptoms.

Contrary to the ARU’s construction, we conclude that OAR

436-035-0400(3) (2018) requires that a doctor’s evaluation of

the effects of permanent changes due to the worker’s mental

illness include whether the worker would experience dete-

rioration or decompensation in work or a work-like setting,

even if the worker is not currently working.

Thus, we disagree with the board that the ARU was

not applying a construction of OAR 436-035-0400(3) (2018)

Cite as 322 Or App 396 (2022) 403

when it decided that evidence of what claimant would expe-

rience if he were to return to work or a work-like setting was

not relevant. Despite that disagreement, however, we con-

clude that the ARU’s construction of OAR 436-035-0400(3)

is not a plausible one, because it is inconsistent with the

rule’s text. For that reason, we reject employer’s contention

in its first assignment of error that the board erred in not

deferring to the ARU’s construction. The board correctly

determined that Thibert’s opinion concerning the probabil-

ity that claimant would experience deterioration or decom-

pensation in a work, or a work-like, setting was relevant and

supports the Class 2 level of impairment.

Employer’s second assignment of error relates to the

determination of work disability. When, as here, a worker

has ratable permanent impairment and has not returned

to regular work, the worker may be entitled to an addi-

tional benefit for work disability under ORS 656.214

(1)(c)(B) and ORS 656.214(1)(e), which includes consider-

ation of the worker’s age, education, and adaptability. See

also OAR 436-035-0012. The education factor includes a

value for “specific vocational preparation” (SVP)—a value

based on the jobs successfully performed before injury. The

SVP value is determined by identifying the worker’s job-at-

injury in the Dictionary of Occupational Titles (DOT). OAR

436-035-0012(5).

On judicial review, employer contends that the

board erred in determining that claimant’s job-at-injury

was “deputy sheriff,” resulting in an SVP value of “5.”

Employer contends that claimant’s job-at-injury was “lieu-

tenant,” which would result in an SVP value of “8.” Claimant

challenges employer’s preservation of the argument, noting

that employer never disputed claimant’s contention at the

hearing that his job-at-injury was “deputy sheriff.” We agree

with claimant that it is not apparent that employer pre-

served the current contention before the ALJ. See Rushton

v. Oregon Medical Board, 313 Or App 574, 576-77, 497 P3d

814 (2021) (explaining that the rules of preservation apply

in judicial review proceedings and require a party to pro-

vide the agency with an explanation of the objection that is

specific enough to ensure that the agency is able to consider

404 Deschutes County v. Leak

the point and avoid committing the error). Even assuming

that the issue has been adequately preserved, however, we

conclude that the board’s finding is supported by substantial

evidence. We therefore summarily reject the second assign-

ment of error.

Affirmed.