Gramada v. SAIF

276

Argued and submitted January 25, affirmed June 7, petition for review denied

November 2, 2023 (371 Or 511)

In the Matter of the Compensation of

Viorica Gramada, Claimant.

Viorica GRAMADA,

Petitioner,

v.

SAIF CORPORATION

and Community Vision, Inc.,

Respondents.

Workers’ Compensation Board

2005499; A177672

532 P3d 539

Claimant petitions for review of an order of the Workers’ Compensation Board

(board). In that order, the board found that claimant’s workplace injury to her

lower back did not cause impairment to claimant and denied claimant an award

of permanent partial disability benefits under ORS 656.214. A medical arbiter

found loss of use or function to claimant’s low back, but that claimant’s accepted

condition, a lumbar strain, was fully resolved and did not cause the loss of use or

function. A finding of impairment requires (1) that there is a loss of use or func-

tion of the body part or system, and (2) that the loss is due to the compensable

injury. Robinette v. SAIF, 369 Or 767, 781-82, 511 P3d 1074 (2022) (citing ORS

656.214). In claimant’s view, “compensable injury” refers to the “ ‘full measure’

of impairment in the injured body part” regardless of whether the impairment

is the result of the accepted condition. Respondent argues that Oregon courts

have already made clear that the compensable injury is the accepted condition.

Held: The Court of Appeals concluded that a claimant’s “accepted condition” is

the same as a “compensable injury” for purposes of ORS 656.214, and that a loss

is “due to the compensable injury” when the accepted condition is found to be a

material cause of the loss. Johnson v. SAIF, 369 Or 579, 603, 507 P3d 1277 (2022),

and Robinette, 369 Or at 784. Thus, the court determined that the findings of

loss of use or function in claimant’s low back are not impairment under ORS

656.214, because the record shows that claimant’s impairment was in no part due

to the accepted condition. In sum, because the record indicates that there was

no “impairment” under ORS 656.214, claimant was not entitled to permanent

partial disability benefits.

Affirmed.

Jodie Anne Phillips Polich argued the cause for petitioner.

Also on the briefs was Law Office of Jodie Anne Phillips

Polich, P.C.

Cite as 326 Or App 276 (2023) 277

Daniel Walker filed the brief for respondents SAIF

Corporation and Community Vision Inc.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and

Jacquot, Judge.

JOYCE, J.

Affirmed.

278 Gramada v. SAIF

JOYCE, J.

Claimant petitions for review of an order of the

Workers’ Compensation Board. In that order, the board

found that claimant’s workplace injury to her lower back did

not cause impairment to claimant and denied claimant an

award of permanent partial disability benefits under ORS

656.214. We review the board’s legal conclusions for errors

of law, ORS 183.482(8)(a); ORS 656.298(7), and affirm.

FACTS

The parties accept the findings of the board as sub-

stantially accurate. We thus state the facts consistently with

the board’s unchallenged factual findings. Magana-Marquez

v. SAIF, 276 Or App 32, 33, 366 P3d 764 (2016).

The workplace injury at issue in this case occurred

in March 2020, when claimant suffered sharp low back

and lower abdominal pain after she helped a patient into a

shower and was thereafter diagnosed with a lumbar strain.

In April 2020, SAIF accepted a lumbar strain condition.1 In

August 2020, SAIF issued a notice of closure that awarded

temporary disability benefits but no permanent disability

benefits for the March 2020 workplace injury.

Soon after, SAIF issued an order on reconsider-

ation affirming the notice of closure. SAIF based its deci-

sion on a medical arbiter’s report. The medical arbiter had

stated that “[z]ero percent of the findings [lumbar] are due

to the resolved accepted condition” and “[o]ne hundred per-

cent of the findings are due to the preexisting conditions

documented on her lumbar imaging studies.” The medical

arbiter asserted that “[t]he accepted condition is lumbar

strain which has resolved and is no longer present. Findings

obtained on my exam are not valid for a condition that has

resolved. The findings I reported are valid for degenera-

tive conditions, present on her multiple imaging studies.”

1

A July 2020 “Updated Notice of Acceptance at Closure” identified the

accepted condition for claimant’s March 9, 2020, injury as “lumbar strain.” The

notice made clear that “[t]he accepted condition(s) does not include a combined

condition unless specifically indicated in this updated notice of acceptance.” The

notice further made clear that it “restate[d] and include[d] all prior acceptances.

The conditions that were the basis of this claim opening were the only conditions

considered at the time of claim closure.”

Cite as 326 Or App 276 (2023) 279

Claimant sought review, asserting that she was entitled to

a permanent impairment award.

Relying on the medical arbiter’s findings, an admin-

istrative law judge (ALJ) affirmed the reconsideration order

because “[t]he evidence establishes that none of claimant’s

disability or need for treatment for the low back condition is

related to claimant’s injury.” Soon after, the board adopted

and affirmed the ALJ’s order. The board concluded that

because the medical arbiter’s findings did not support a con-

clusion that “impairment was caused, in any part, by the

compensable injury,” and the reconsideration order based its

determination on the medical arbiter’s findings, there was

no error in the reconsideration process.

On appeal, claimant challenges the board’s deter-

minations.

DISCUSSION

The question in this case is whether claimant is

entitled to a permanent partial disability award under ORS

656.214. ORS 656.214 states, in relevant part,

“(2) When permanent partial disability results from a

compensable injury or occupational disease, benefits shall

be awarded as follows:

“(a) If the worker has been released to regular work

by the [authorized attending medical professional] or has

returned to regular work at the job held at the time of

injury, the award shall be for impairment only. Impairment

shall be determined in accordance with the standards pro-

vided by the Director of the Department of Consumer and

Business Services pursuant to ORS 656.726(4). * * *

“(b) If the worker has not been released to regular

work by the [authorized attending medical professional]

or has not returned to regular work at the job held at the

time of injury, the award shall be for impairment and work

disability.”

“Impairment” is defined as “the loss of use or function of

a body part or system due to the compensable industrial

injury or occupational disease determined in accordance

with the standards provided under ORS 656.726, expressed

as a percentage of the whole person.” ORS 656.214(1)(a).

280 Gramada v. SAIF

“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).2 “ ‘Loss’ includes permanent and complete or partial

loss of use.” ORS 656.214(1)(b).

Claimant asserts that she is entitled to a perma-

nent partial disability award under ORS 656.214 because

she suffered a “compensable injury” in the accident at work

in March 2020, notwithstanding the undisputed evidence

that the specific condition that SAIF accepted—lumbar

strain that resulted from that workplace accident—had fully

resolved and in no part contributed to loss of use or func-

tion in her back. In claimant’s view, “compensable injury,”

ORS 656.214, refers to more than just the accepted condi-

tion; rather, she argues, it refers to the “ ‘full measure’ of

impairment in the injured body part” regardless of whether

the impairment is the result of the accepted condition.

Respondent, on the other hand, argues that Oregon courts

have already made clear that the compensable injury is the

accepted condition.

Resolution of this issue requires us to determine

whether a claimant’s “accepted condition” is the same as a

“compensable injury.” ORS 656.262(6)(b) (requiring insurers

to issue a notice of acceptance that specifies which condi-

tions are compensable); ORS 656.214(2) (requiring benefits

to be awarded when a permanent partial disability results

from a “compensable injury”). Although no Oregon appellate

decision has expressly decided that question, the Supreme

Court has nevertheless decided several cases that, when

knitted together, lead us to the conclusion that a claimant’s

accepted condition is their compensable injury for purposes

of ORS 656.214. We thus turn to those cases.

2

“Injury” is not defined by statute and has been interpreted differently in

different contexts in the workers’ compensation statutory scheme. See Brown v.

SAIF, 361 Or 241, 254, 391 P3d 773 (2017) (explaining that the term “injury”

may plausibly refer either “to an incident that causes or results in harm, or it

can refer to the harm itself,” and explaining that “[u]nder the circumstances, the

resolution of the dispute in this case will not turn on whether an interpretation of

one provision is inconsistent with another in the workers’ compensation statutes.

Regardless of what we say about the statutes at issue in this case, doubtless at

least one provision could be cited that arguably contradicts that interpretation in

one way or another.”).

Cite as 326 Or App 276 (2023) 281

We begin with Garcia-Solis v. Farmers Ins. Co., 365

Or 26, 441 P3d 573 (2019). There, the Supreme Court, inter-

preting the meaning of “compensable injury” for purposes

of ORS 656.245, explained that the statutory definition of

“compensable injury” under ORS 656.005(7)(a) means med-

ical conditions, as opposed to the workplace accident as a

whole. The court explained that while its prior decisions

were not clear as to whether “compensable injury” refers

only to accepted medical conditions, previous opinions “con-

tain several broad assertions that ‘compensable injury’

means ‘accepted conditions.’ ” Garcia-Solis, 365 Or at 34-35;

see also Brown v. SAIF, 361 Or 241, 255-72, 391 P3d 773

(2017) (reviewing text, context, and legislative history to

conclude that “injury” means a medical condition, not an

accident). Although the court interpreted “compensable

injury” for purposes of ORS 656.245, not ORS 656.214, the

court’s discussion of compensable injury being synonymous

with accepted conditions for purposes of ORS 656.005(7)(a)

is instructive.

Even more to the point are two more recent deci-

sions, Johnson v. SAIF, 369 Or 579, 507 P3d 1277 (2022),

and Robinette v. SAIF, 369 Or 767, 511 P3d 1074 (2022).

In Johnson, the Supreme Court addressed the meaning of

the word “impairment” “within the context of the workers’

compensation statutory scheme and whether a claimant is

entitled to compensation for the full measure of impairment

where it is caused in material part, but not solely, by a com-

pensable injury.” 369 Or at 581. The Johnson claimant’s loss

of grip strength was determined “to be caused in material

part by an accepted, compensable condition and, in part,

by a denied condition.” Id. The Johnson court agreed with

the claimant that ORS 656.214 “entitles an injured worker

to compensation for all of the impairment due in material

part to, and resulting in material part from, the compen-

sable injury.” Id. at 603. “[B]ecause the compensable injury

was found to be a material cause of [the] claimant’s impair-

ment,” the claimant was entitled to “the full value of her

total impairment, including the portion of her loss of grip

strength that may have been attributed to the denied condi-

tions.” Id.

282 Gramada v. SAIF

In reaching that conclusion, the court noted the

“basic, underlying rule” that “when an accepted, compensa-

ble injury is a material contributing cause of the claimant’s

impairment, then the claimant is entitled to the full mea-

sure of compensation for that impairment.” Johnson, 369 Or

at 597 (citing Barrett v. D & H Drywall, 300 Or 553, 555-56,

715 P2d 90 (1986) (Barrett II) and Schleiss v. SAIF, 354 Or

637, 651, 317 P3d 244 (2013) (emphasis added)).3 That basic

rule holds unless some exception or limitation applies, such

as a combined condition. Id. (citing ORS 656.268(1)(b)). But

“when no combined condition exists, the general rule that a

claimant is entitled to the full measure of impairment where

the accepted condition is a material contributing cause of

the disability applies.” Johnson, 369 Or at 599 (emphasis

added).

Robinette further guides our understanding of the

meaning of “compensable injury” and whether that term

equates with accepted condition. The claimant in Robinette

was found to have multiple types of loss of use or function

of the right knee. The dispute on review involved two find-

ings of loss of use or function that were “determined to be

entirely related to causes other than claimant’s compensable

workplace injury.” Robinette, 369 Or at 769. The board had

determined that because those two findings were attributed

entirely to non-work-related causes, the permanent partial

disability award would not include any value for impairment

related to those findings. Id. at 772-73.

The Robinette claimant sought judicial review, argu-

ing that “she was entitled to an award accounting for the

full measure of impairment in her right knee * * * because

her compensable work injury was a material contributing

3

Claimant describes Schleiss as “the anchoring case which specifically dis-

cussed that impairment must be ‘due to’ the compensable injury and that appor-

tionment can occur only when there is a legally cognizable preexisting condition.”

Schleiss predates Robinette and Johnson. In addition, Schleiss does not contradict

our holding today; in fact, in Schleiss, the court uses the terms “condition” and

“injury” interchangeably, lending support to our conclusion. The Schleiss court

explained that “[t]he claimant has the burden to establish the nature and extent

of any impairment that is due to the compensable condition[,]” citing to ORS

656.266(1), which states, in relevant part, that “[t]he burden of proving that an

injury * * * is compensable and of proving the nature and extent of any disability

resulting therefrom is upon the worker.” 354 Or at 646-47 (emphases added).

Cite as 326 Or App 276 (2023) 283

cause of her impairment as a whole.” Id. at 773. The Supreme

Court began by explaining that resolution of the dispute

“center[ed] around the word impairment” as used in ORS

656.214 and “whether the calculation of permanent partial

disability is intended to encompass findings of loss that are

entirely unrelated to the accepted, compensable injury.”

Id. at 775. The court recognized that at first glance, prior

cases appeared to support the claimant’s position, explain-

ing that “[w]ithout a combined condition, [the] claimant is

correct that she is entitled to the full measure of her impair-

ment that is due, in material part, to the compensable

injury.” Id. at 780.

The court acknowledged that “[t]he general rule

underlying all workers’ compensation claims is that a worker

is entitled to compensation for impairment that is caused in

material part by the compensable injury, even if that impair-

ment is heightened—or different—because of a worker’s

individual circumstances prior to the injury.” Robinette, 369

Or at 777 (citing Barrett v. D & H Drywall, 300 Or 325, 709

P2d 1083 (1985) (Barrett I), adh’d to on recons, 300 Or 553,

715 P2d 90 (1986) (Barrett II)). In addition, the court stated

that “in circumstances where the combined condition frame-

work is not applicable, we have continually confirmed that

the general rule remains: Where an accepted, compensa-

ble injury is a material contributing cause of the claimant’s

impairment, then the claimant is entitled to the full mea-

sure of compensation for that impairment.” Id. at 779 (citing

Johnson, 369 Or at 595 (emphasis in Robinette)).

However, the court explained, a key fact set the

claimant in Robinette apart from the claimant in Johnson:

“based on the evidence in the record and the ALJ’s findings,

no part of the claimant’s [loss of use or function findings

in dispute] could be attributed to the accepted condition.”

Robinette, 369 Or at 781. The court continued, “To qualify

as ‘impairment,’ such that a claimant is entitled to a value

for that loss as part of their permanent partial disability

award, there are two requirements: (1) that there is a loss of

use or function of the body part or system, and (2) that that

loss is ‘due to the compensable injury.’ ” Id. at 781-82 (quot-

ing ORS 656.214).

284 Gramada v. SAIF

The court concluded, “Because each finding of loss

of use or function is to be considered separately, and because

the workplace injury was not a material contributing cause

of [the disputed findings of loss], claimant was not entitled

to a value for those findings in her award for permanent

partial disability.” Id. at 784. Notably, as in Johnson, the

court in Robinette used the terms “accepted condition” and

“compensable injury” interchangeably. See Robinette, 369 Or

at 781 (“[B]ased on the evidence in the record and the ALJ’s

findings, no part of the claimant’s [loss of use or function

findings in dispute] could be attributed to the accepted con-

dition.” (Emphasis added.)); id. at 781-82 (explaining that

to qualify as impairment, the loss of use or function of the

body part or system must be “due to the compensable injury”

(emphasis added; internal quotation marks omitted)).

From that constellation of cases, we understand the

following. A finding of impairment requires (1) that there

is a loss of use or function of the body part or system, and

(2) that the loss is due to the compensable injury. Robinette,

369 Or at 781-82 (citing ORS 656.214). Each loss of use or

function is to be considered separately, and a loss is “due

to the compensable injury” when the accepted condition is

found to be a material cause of the loss. Johnson, 369 Or at

603; Robinette, 369 Or at 784.4

In this case, claimant’s compensable injury for pur-

poses of ORS 656.214 was her accepted lumbar strain. It

follows that the arbiter’s findings of loss of use or function in

claimant’s low back are not impairment under ORS 656.214,

4

Further, at claim closure, “[c]onditions that are direct medical sequelae to

the original accepted condition shall be included in rating permanent disability

of the claim unless they have been specifically denied.” ORS 656.268(15). In addi-

tion, if an injured worker believes that a condition has been incorrectly omitted

from the notice of acceptance, the worker can notify the insurer of their objections

to the notice in writing pursuant to ORS 656.267. ORS 656.262(6)(d). “If there are

disputes about the compensability of conditions not specifically identified in the

updated notice of acceptance [at closure], the legislature has specified that those

disputes are not to delay timely closure but, rather, ‘[i]f a condition is found com-

pensable after claim closure, the insurer or self-insured employer shall reopen

the claim for processing regarding that condition.’ ” Simi v. LTI Inc. - Lynden Inc.,

368 Or 330, 339, 491 P3d 33 (2021) (quoting ORS 656.262(7)(c)). Such provisions

would be unnecessary if “compensable injury” referred to the full measure of loss

of use or function of a body part or system that had not been excluded via the

combined condition process.

Cite as 326 Or App 276 (2023) 285

because the record shows that the lumbar strain was not a

material contributing cause of the claimant’s impairment—

claimant’s impairment was in no part due to the lumbar

strain. Robinette, 369 Or at 784. The court therefore did not

err in not awarding permanent partial disability.

To be sure, if the medical arbiter had found that

claimant’s lumbar strain was in material part a cause of

loss of use or function to her low back, then the question

would be whether claimant was entitled to “the full measure

of compensation for that impairment, not just the percent-

age of impairment caused solely by the compensable injury.”

Johnson, 369 Or at 595. But that did not occur in this case.

While claimant has met the first requirement for impair-

ment for purposes of ORS 656.214, that “there is a loss of use

or function of the body part or system,” the medical arbiter’s

findings established that the loss of use or function was in

no part “due to the compensable injury,” as required under

the second prong. Robinette, 369 Or at 781-82 (citing ORS

656.214); OAR 436-035-0006(1); OAR 436-035-0007(1)(b)(C).

As such, the board did not err in finding that claimant had

not proven entitlement to an award of permanent partial

disability to her low back.

Claimant argues that once her claim for lumbar

strain was accepted, she had established a compensable

injury under ORS 656.005(7)(a) and the burden shifted to

SAIF to “identify preclosure what other conditions [were]

contributing to impairment or disability in the injured body

part by accepting and denying a ‘combined condition’ under

ORS 656.268(1)(b).” She asserts that by failing to process her

injury as a combined condition, SAIF “failed to avail itself of

the [only] means by which it may apportion or limit payment

of impairment[.]” We reject that argument because there is

nothing to apportion. None of use or function in claimant’s

low back was attributed to the fully resolved lumbar strain.

In sum, because the record indicates that there was

no “impairment” under ORS 656.214, claimant was not enti-

tled to permanent partial disability benefits.

Affirmed.