Robinette v. SAIF

767

Argued and submitted June 24, 2021; decision of Court of Appeals reversed,

order of Workers’ Compensation Board affirmed June 3, 2022

In the Matter of the Compensation of

Theresa M. Robinette, Claimant.

Theresa M. ROBINETTE,

Respondent on Review,

v.

SAIF CORPORATION

and HCW Clients -

Oregon Homecare Commission,

Petitioners on Review.

(SAIF 18-01420) (CA A170673) (SC S068207)

511 P3d 1074

Claimant injured her right knee at work and her workers’ compensation

claim was accepted for a right knee strain. Following a knee surgery, claimant’s

doctor closed the workers’ compensation claim and claimant was awarded whole

person impairment for the surgical value associated with the knee surgery. Upon

reconsideration of the notice of closure, a medical arbiter found additional loss

of use or function of claimant’s knee in the form of reduced range of motion and

decreased stability but attributed those findings entirely to non-work-related

causes. Claimant was awarded additional impairment value for chronic condi-

tion impairment but did not receive any value for the reduced range of motion and

decreased stability, based on the medical arbiter’s findings that those were not

related to the compensable injury. The Workers’ Compensation Board upheld that

award, but the Court of Appeals reversed. SAIF sought review of that decision.

Held: When calculating permanent partial disability awards, each distinct loss of

use or function of a body part is considered separately to determine if it qualifies

as “impairment”—that is, “loss of use or function of a body part or system due to

the compensable industrial injury”—under ORS 656.214.

The decision of the Court of Appeals is reversed. The order of the Workers’

Compensation Board is affirmed.

On review from the Court of Appeals.*

Daniel Walker, Appellate Counsel, SAIF Corporation,

argued the cause and filed the briefs for petitioners on

review.

______________

* On judicial review from the Workers’ Compensation Board. 307 Or App 11,

475 P3d 470 (2020).

768 Robinette v. SAIF

Jodie Phillips Polich, Law Offices of Jodie Anne Phillips

Polich, PC, Milwaukie, argued the cause and filed the brief

for respondent on review.

Rebecca A. Watkins, Sather Byerly & Holloway, LLP,

Portland, filed the brief for amici curiae Oregon Business &

Industry and Providence Health & Services.

Sommer E. Tolleson, Tolleson Conratt Nielsen Maher

& Replogle LLP, Tigard, filed the brief for amicus curiae

Associated General Contractors - Oregon Columbia Chapter.

Julene M. Quinn, Portland, filed the brief for amicus cur-

iae Oregon Trial Lawyers Association.

Before Walters, Chief Justice, and Balmer, Flynn,

Duncan, Nelson, and Garrett, Justices, and Nakamoto,

Senior Judge, Justice pro tempore.**

NELSON, J.

The decision of the Court of Appeals is reversed. The

order of the Workers’ Compensation Board is affirmed.

______________

** DeHoog, J., did not participate in the consideration or decision of this case.

Cite as 369 Or 767 (2022) 769

NELSON, J.

The dispute in this workers’ compensation case pro-

vides this court with another opportunity to address the

meaning of the word “impairment” within the context of

the workers’ compensation statutory structure. Under ORS

656.214, impairment is defined as “the loss of use or function

of a body part or system due to the compensable industrial

injury.” This case involves loss of use or function of claim-

ant’s right knee—specifically, reduced range of motion and

decreased stability in that knee—that was determined to

be entirely related to causes other than claimant’s compen-

sable workplace injury. In addition, claimant has loss of use

or function of that same knee—surgical value and chronic

condition loss—that is related to the workplace injury. In

claimant’s view, she was entitled to the full measure of

impairment for all new findings of loss—the reduced range

of motion, the decreased stability, the surgical value, and the

chronic condition. On judicial review, the Court of Appeals

agreed with claimant, holding that “claimant’s impairment

‘as a whole’ includes her whole-person impairment, of which

the work injury is a material contributing cause, as well as

her impairment due to loss of range of motion and stability.”

Robinette v. SAIF, 307 Or App 11, 16, 475 P3d 470 (2020).

SAIF disagreed and sought review before this court, argu-

ing that findings of loss due entirely to causes other than the

compensable injury do not satisfy the statutory definition of

“impairment” and, accordingly, should be excluded from an

injured worker’s permanent partial disability award.

We agree with SAIF. For the reasons that follow, we

conclude that claimant was not entitled to compensation for

the reduced range of motion and decreased stability findings

of loss. Accordingly, we reverse the decision of the Court of

Appeals and affirm the order of the Workers’ Compensation

Board.

I. FACTS AND PROCEDURAL HISTORY

A. Overview of Key Terminology and Statutory Background

To provide necessary context for the issues presented

in this case, we begin with a brief overview of key terminol-

ogy and the workers’ compensation claims process. After a

770 Robinette v. SAIF

workplace injury occurs, an injured worker is required to

provide written notice of the injury to the employer within

90 days of the injury occurring. See ORS 656.265(1)(a)

(“Notice of an accident resulting in an injury or death shall

be given immediately by the worker or a beneficiary of the

worker to the employer, but not later than 90 days after the

accident. The employer shall acknowledge forthwith receipt

of such notice.”). During its investigation and evaluation

of a submitted claim, the insurer or self-insured employer

must determine if the claim is compensable. ORS 656.262. A

“compensable injury” is “an accidental injury * * * arising out

of and in the course of employment requiring medical ser-

vices or resulting in disability or death.” ORS 656.005(7)(a).

In most circumstances, the burden of proving that a partic-

ular injury is compensable, as well as proving the nature

and extent of any disability resulting from that injury, is on

the injured worker. ORS 656.266(1).

Once the insurer or self-insured employer has deter-

mined whether the claim is compensable, it is required to

inform the claimant in writing of the claim’s acceptance or

denial. See ORS 656.262(6)(a) (“Written notice of acceptance

or denial of the claim shall be furnished to the claimant by

the insurer or self-insured employer within 60 days after the

employer has notice or knowledge of the claim.”). The workers’

compensation statutes set out specific requirements for

both a notice of acceptance and a notice of denial. See ORS

656.262(6)(b) (setting out the requirements for a notice of

acceptance); ORS 656.262(9) (setting out the requirements

for a notice of denial).

A claim may be closed when the accepted, compen-

sable condition becomes medically stationary, that is, when

“no further material improvement would reasonably be

expected from medical treatment or the passage of time.”

See ORS 656.005(17) (defining “medically stationary”). At

that time, permanent partial disability awards, if applica-

ble, are calculated.1 Then, ORS 656.262(7)(c) sets out the

procedure for closing the claim:

1

Permanent partial disability is defined as either “[p]ermanent impairment

resulting from the compensable industrial injury or occupational disease” or

“[p]ermanent impairment and work disability resulting from the compensa-

ble industrial injury or occupational disease.” ORS 656.214(1)(c). As discussed

Cite as 369 Or 767 (2022) 771

“When an insurer or self-insured employer determines

that the claim qualifies for claim closure, the insurer or

self-insured employer shall issue at claim closure an

updated notice of acceptance that specifies which condi-

tions are compensable. * * * Any objection to the updated

notice or appeal of denied conditions shall not delay claim

closure pursuant to ORS 656.268. If a condition is found

compensable after claim closure, the insurer or self-insured

employer shall reopen the claim for processing regarding

that condition.”

The claimant may then accept the closure and the pay-

ment of benefits or, if the claimant objects to the terms of

the notice of closure or the scope of the award, the worker

may request reconsideration. See generally ORS 656.268

(5)(c) (describing requirements for notice of closure, including

a statement regarding a claimant’s right to request reconsid-

eration). If the claimant’s physical impairment is in dispute

on reconsideration, then the Director of the Department of

Consumer and Business Services must appoint a medical

arbiter to consider the claim. See ORS 656.268(8)(a) (“If the

basis for objection to a notice of closure issued under this

section is disagreement with the impairment used in rating

of the worker’s disability, the director shall refer the claim

to a medical arbiter appointed by the director.”).

B. Facts and Procedural History

With that background in mind, we turn to the facts

of this case. In 2010, claimant, then a school custodian,

slipped on leaves at work and injured her right knee, thigh,

and hip. Claimant filed a workers’ compensation claim with

her employer and it was accepted for right hip, right knee,

and right thigh strains.

In 2016, claimant was treated in the emergency

department at Legacy Mount Hood for right knee pain result-

ing from another fall that had occurred at her workplace when

she tripped over a piece of equipment, twisted her right knee,

and landed with all her weight on that knee. Claimant filed

a new workers’ compensation claim for that incident and that

in greater detail below, permanent partial disability benefits are calculated in

accordance with the rules and procedures set forth in ORS 656.214, and the

accompanying administrative rules.

772 Robinette v. SAIF

claim was accepted for a right knee strain. Claimant under-

went arthroscopic partial medial meniscectomy surgery for a

right knee medial meniscus tear that year.

In August 2018, claimant’s doctor—the same one

who had performed her 2016 knee surgery—conducted

a closing evaluation of claimant’s workers’ compensation

claim. That doctor released claimant back to her job, effec-

tive as of September 2017, and indicated that claimant did

not suffer significant limitations in the repetitive use of her

right knee or leg. The notice of closure that followed that

evaluation awarded two percent loss of the whole person for

impairment to claimant’s right knee, based on the surgical

value associated with claimant’s right knee surgery.

Claimant requested reconsideration of the notice

of closure. An orthopedic surgeon, acting on SAIF’s behalf,

conducted a new evaluation of claimant’s injury. A medi-

cal arbiter examination also took place. Despite the earlier

findings from claimant’s doctor, the medical arbiter found

that claimant was significantly limited in the repetitive use

of her right leg for more than two-thirds of an eight-hour

work period and discovered that claimant suffered some

additional loss of the use of her right knee in the form of

reduced range of motion and decreased stability. The med-

ical arbiter, however, attributed those findings entirely to

non-work-related causes.2 Accordingly, the order on recon-

2

SAIF frames the medical arbiter’s findings slightly differently than the

administrative law judge (ALJ) who reviewed claimant’s case. SAIF notes that,

in response to specific questions in a cover letter, the doctor who performed the

medical arbiter examination stated that the “[r]educed ranges of motion of the

right knee were attributed to body habitus and not to the accepted conditions,”

though he later concluded his report by stating that, “[t]he stability findings are

one hundred percent (100%) due to preexisting non-work-related degenerative

changes of the right knee as well as the range of motion findings being one hun-

dred percent (100%) related to the preexisting condition of osteoarthritis of the

right knee.” The ALJ’s order on review states that the medical arbiter “attributed

reduced ranges of motion of the right knee to body habitus and not to the accepted

conditions” and that “there might also be contribution to restriction of ranges

of motion due to documented arthritis of the right knee,” but that the “stability

findings were one hundred percent due to non-work-related degenerative find-

ings.” Both statements appear to accurately reflect the report that the medical

arbiter prepared after reviewing claimant’s case and the difference in framing

is not consequential to our opinion today. Although both parties agree that the

medical arbiter found that claimant’s right knee range of motion and stability

findings were not attributable to the accepted right knee condition, they frame

Cite as 369 Or 767 (2022) 773

sideration affirmed the previous notice of closure and the

award for two percent whole person impairment.

Claimant then requested an administrative hearing

concerning the extent of her impairment award. Following

that hearing, the administrative law judge (ALJ) amended

the order on reconsideration to recognize additional impair-

ment for a chronic condition of the right knee that had not

previously been calculated. The ALJ explained that the sur-

gical value previously awarded should have been “combined

with the five percent chronic condition impairment for the leg

for a 10 percent impairment value for loss of the leg[,]” which

converts to an award for five percent loss of the whole per-

son. In short, the amended order on reconsideration modified

the total permanent partial disability award to five percent

whole person impairment. Based on the medical arbiter’s

conclusion that the reduced range of motion and decreased

stability findings were unrelated to the compensable injury,

the ALJ did not modify the permanent partial disability

award to include any additional value for impairment related

to those findings.

Claimant requested review of that decision by the

Workers’ Compensation Board (board). The board adopted

and affirmed the ALJ’s order.

Claimant sought judicial review in the Court of

Appeals, arguing that, under this court’s decision in Caren

v. Providence Health System Oregon, 365 Or 466, 446 P3d 67

(2019), she was entitled to an award accounting for the full

measure of impairment in her right knee—including the

reduced range of motion and decreased stability findings, as

well as the surgical and chronic condition values—because

her compensable work injury was a material contributing

cause of her impairment as a whole. In response, SAIF

argued that Caren did not control because that case involved

apportionment and a combined condition, two attributes

that are not present on the facts in claimant’s case. Instead,

in SAIF’s view, claimant suffered from separate findings

of loss caused entirely by a noncompensable condition and

the non-work-related cause—degenerative changes, body habitus, or preexisting

osteoarthritis—differently. There is no need for us to address that difference.

774 Robinette v. SAIF

claimant was not entitled to compensation for those findings

of loss because they did not meet the statutory definition of

“impairment.”

Acknowledging that Caren did not directly answer

the question presented, but nonetheless relying on guidance

provided by this court in that case, the Court of Appeals

explained that claimant was entitled to an award account-

ing for the full measure of impairment in the entirety of her

right knee because her work injury was a material contrib-

uting cause of her impairment “as a whole.” Robinette, 307 Or

App at 16. The Court of Appeals considered this court’s rea-

soning in Caren to be relevant in claimant’s case, explaining

that “[i]f the employer intends to assert that a portion of the

claimant’s impairment is not related to the work injury, the

employer is required to issue a preclosure denial of the con-

dition giving rise to the impairment” before “the employer is

entitled to a reduction in impairment benefits for the portion

of the impairment that is attributable to a cognizable pre-

existing condition.” Id. Because the condition that caused

the range of motion and stability impairment had not been

specifically denied, the Court of Appeals reversed, holding

that claimant was entitled to compensation for those find-

ings. Id.

SAIF petitioned for review of that decision, arguing

that the Court of Appeals incorrectly interpreted the mean-

ing of “impairment” in ORS 656.214. SAIF contended that

claimant should not receive an award for findings of loss

that are attributed entirely to conditions that are unrelated

to the accepted compensable injury. Specifically, SAIF rea-

soned that claimant should not receive an award of perma-

nent partial disability for the reduced range of motion and

decreased stability findings in her right knee because those

were not related to the compensable injury. In SAIF’s view,

ORS 656.214 and the surrounding statutes that govern

awards for permanent partial disability clearly demonstrate

that findings of loss that are unrelated to the compensa-

ble injury do not qualify as impairment. We allowed review

to consider whether the definition of “impairment” within

ORS 656.214(1)(a) includes findings of loss that are not at all

related to, or caused by, the compensable injury.

Cite as 369 Or 767 (2022) 775

II. ANALYSIS

As explained above, the workers’ compensation

statutes provide for a specific process that must be adhered

to following a workplace injury. When an accepted, compen-

sable injury becomes medically stationary, then the insurer

or self-insured employer calculates the amount of disability

benefits due to the claimant. See generally ORS 656.262(7)(c)

(setting out process for closing a claim). Those disability

benefits include benefits for permanent partial disability,

if applicable in the case, based on the impairment to the

claimant. The primary disagreement between the parties in

this case centers around the word “impairment”—“the loss

of use or function of a body part or system due to the compen-

sable injury,” ORS 656.214—and whether the calculation of

permanent partial disability is intended to encompass find-

ings of loss that are entirely unrelated to the accepted, com-

pensable injury.

On review, SAIF contends that loss “due to the com-

pensable injury” includes only findings of loss that stem

from the accepted conditions. In its view, any other findings

of loss that do not have a causal relationship to the accepted

conditions do not qualify as impairment under ORS 656.214

because those findings are not “due to the compensable

injury.” SAIF contends that neither the workers’ compen-

sation statutes, nor the administrative rules interpreting

those statutes, support awards for permanent partial dis-

ability stemming from findings of loss that are completely

unrelated to the accepted conditions. Accordingly, SAIF

argues that the Court of Appeals’ decision awarding claim-

ant compensation for all of the findings of loss—including

value for loss that was entirely caused by a noncompensable

condition—is a misinterpretation of this court’s decisions

and is inconsistent with the workers’ compensation statu-

tory scheme.

In response, claimant contends that the statutory

definition of “impairment” in ORS 656.214 makes clear that

an injured worker is entitled to the “full measure of impair-

ment” for the loss of use or function of a body part or sys-

tem due to the “compensable injury,” including all findings

of loss. Claimant argues that “[i]t is the insurer/self-insured

776 Robinette v. SAIF

employer’s burden of proof to identify what medical condi-

tions, other than the medical conditions caused by the com-

pensable injury, are contributing to impairment in the body

part or systems harmed as a result of the work accident.”

In claimant’s view, once she established that her claim was

compensable, she was entitled to the full measure of her

loss, including value for the reduced range of motion and

decreased stability findings. Claimant contends that the

Court of Appeals properly determined that claimant was

entitled to compensation for the full extent of loss of use or

function of her knee, including the reduced range of motion

and decreased stability findings.

The dispute in this case presents a question of stat-

utory interpretation. When we are faced with an issue of

statutory construction, as here, we resolve that issue follow-

ing the established statutory interpretation framework laid

out in PGE v. Bureau of Labor and Industries, 317 Or 606,

610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or

160, 171-72, 206 P3d 1042 (2009). In interpreting statutory

provisions, our primary goal is to determine the intent of

the legislature at the time that it enacted the relevant stat-

utes. See Gaines, 346 Or at 171 (“This court remains respon-

sible for fashioning rules of statutory interpretation that,

in the court’s judgment, best serve the paramount goal of

discerning the legislature’s intent.”). To determine whether

the legislature intended for injured workers to receive com-

pensation for the full measure of all new loss of use or func-

tion of a body part, even loss of use or function that is wholly

unrelated to the compensable injury, we examine the work-

ers’ compensation statutes as a whole and our prior judicial

interpretations of those statutes. See Caren, 365 Or at 472

(citing Brown v. SAIF, 361 Or 241, 283, 391 P3d 773 (2017)).

With that in mind, we turn to our previous cases discussing

the meaning of “impairment” and the causes that contribute

to it.

This court has construed “impairment” and the

causes that contribute to it on multiple occasions, including

in our recent opinion in Johnson v. SAIF, 369 Or 579, 507

P3d 1277 (2022), a case that was consolidated for oral argu-

ment with this one. In Johnson, we extensively reviewed

Cite as 369 Or 767 (2022) 777

this court’s prior judicial interpretations of the meaning

of the word “impairment,” the causes that contribute to it,

and the surrounding statutory framework in the workers’

compensation scheme. 369 Or at 590-97. Those cases do not

bear repeating here in such extensive detail, but they none-

theless lay out important background principles that will

aid in better understanding the parties’ arguments before

answering the question before us in this case.

In one of the first cases addressing the meaning

of “impairment,” and the phrase “due to the compensable

injury,” as used in ORS 656.214, 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), this court

explained the statutorily prescribed standard for determin-

ing whether an award for permanent partial disability is

appropriate. When an accepted, compensable injury is the

material contributing cause of a claimant’s impairment,

then the claimant is entitled to the full measure of compen-

sation for that entire impairment. Johnson, 369 Or at 595.

In other words, as we understood the workers’ compensa-

tion statutory scheme at the time the Barrett cases were

decided, an injured worker is entitled to compensation for

the full measure of new impairment caused by the compen-

sable injury, whether the injured worker suffers greater

permanent partial disability because of a preexisting condi-

tion or not. See Barrett I, 300 Or at 328 (“The oft-expressed

maxim still applies: An employer takes the worker as he

finds him. Whether the worker suffers greater permanent

partial disability * * * because of a preexisting condition is

irrelevant in deciding the amount of loss of earning capacity

caused by a new injury superimposed on a preexisting con-

dition.”). The general rule underlying all workers’ compen-

sation claims is that a worker is entitled to compensation

for impairment that is caused in material part by the com-

pensable injury, even if that impairment is heightened—or

different—because of a worker’s individual circumstances

prior to the injury.

Then, in 1990, the legislature enacted a significant

overhaul of the workers’ compensation statutory scheme. See

Caren, 365 Or at 476-77 (discussing the 1990 overhaul of the

778 Robinette v. SAIF

workers’ compensation statutes in response to this court’s

decisions in the Barrett cases); see also Brown v. SAIF, 361

Or 241, 265-66, 391 P3d 773 (2017) (describing the 1990 spe-

cial session and the overhaul of the workers’ compensation

statutes that resulted); Or Laws 1990, ch 2, § 3 (Spec Sess)

(detailing the changes made during the legislative session).

Those legislative changes included the creation of what is

now known as the “combined condition” framework. Caren,

365 Or at 476-77. The 1990 legislation amended the defini-

tion of “compensable injury” to specify that, when an “other-

wise compensable injury” combines with a preexisting con-

dition to create a new condition or need for treatment, the

combined condition “is compensable only if * * * the other-

wise compensable injury is the major contributing cause of

the disability of the combined condition or the major contrib-

uting cause of the need for treatment of the combined con-

dition.” See ORS 656.005(7)(a)(B). That amendment altered

the material contributing cause standard discussed above

by creating a different standard—a major contributing

cause standard—for combined conditions.

The intent of the legislature in creating the com-

bined condition framework was to enact an exception to

the general rule that would allow insurers or self-insured

employers to reduce their liability for claims in a limited set

of circumstances. See Caren, 365 Or at 473 (“[T]he legislature

intended the combined condition process to create an excep-

tion to the general rule that employers pay compensation for

the full measure of the workers’ permanent impairment if

the impairment as a whole is caused in material part by the

compensable injury[.]”). In cases where a legally cognizable

preexisting condition—that is, “any injury, disease, congen-

ital abnormality, personality disorder or similar condition

that contributes to disability or need for treatment, provided

that * * * the worker has been diagnosed with the condition,

or has obtained medical services for the symptoms of the

condition regardless of diagnosis,” ORS 656.005(24)(a)—

combines with a compensable injury, the legislature carved

out a process through which the insurer can apportion the

claimant’s permanent partial disability award according to

the percentage of the impairment that was caused by the

compensable injury. Caren, 365 Or at 487. That exception is

Cite as 369 Or 767 (2022) 779

limited to circumstances where the insurer or self-insured

employer avails itself of the statutory requirements. See

Schleiss v. SAIF, 354 Or 637, 655, 317 P3d 244 (2013) (“[T]o

qualify for the apportionment of impairment, a cause must

be legally cognizable.”). But, in circumstances where the

combined condition framework is not applicable, we have

continually confirmed that the general rule remains: Where

an accepted, compensable injury is a material contributing

cause of the claimant’s impairment, then the claimant is

entitled to the full measure of compensation for that impair-

ment. Johnson, 369 Or at 595.

With that background in mind, we turn to resolv-

ing the specific issue presented in this case—whether a

claimant who establishes that her compensable injury was

a material cause of some new findings of loss is entitled to

compensation for all new loss of use or function, even loss

findings that are wholly unrelated to the compensable

injury. We addressed a parallel, though ultimately different,

question in our recent decision in Johnson. Understanding

that decision, and the differences in the questions presented

in that case compared to this one, provides guidance for our

decision today.

In Johnson, the claimant suffered a hand injury in a

work-related incident and SAIF accepted, in part, the work-

ers’ compensation claim for her injuries. 369 Or at 583-84.

After receiving treatment for her initial injury, the claim-

ant sought treatment for additional pain. Id. at 584. Later,

during the claim closure process, a medical arbiter deter-

mined that the claimant suffered a loss of grip strength that

was attributable 50 percent to the accepted compensable

conditions and 50 percent to the denied conditions. Id. at

585. Based on that information, the Workers’ Compensation

Board apportioned and reduced the claimant’s permanent

partial disability award according to the percentage of

impairment attributed to the denied condition. Id.

We allowed review of that case to consider the extent

to which the workers’ compensation statutes, and specifi-

cally ORS 656.214, require an insurer to award benefits for

the full measure of an injured worker’s impairment when

that impairment is caused, at least in part, by a previously

780 Robinette v. SAIF

denied noncompensable condition. We explained that an

injured worker is entitled to the full value of an impairment

that is due in material part to, and resulting in material

part from, the compensable injury, and that apportionment

is only appropriate where the employer or insurer follows

the statutory process laid out for identifying a combined or

consequential condition. Id. at 602. Ultimately, we held that

the claimant in Johnson was entitled to the full measure of

her loss of grip strength because that loss had been found to

be caused in material part by the compensable injury and

the claim did not qualify as a combined condition. Id. at 603.

Here, claimant presents a similar argument to the

one presented in Johnson. In her view, once she established

that her workplace injury was compensable, she was enti-

tled to the full measure of all new findings of loss in her

right knee—including compensation for the reduced range

of motion and decreased stability findings, as well as the

surgical and chronic condition values—because her compen-

sable work injury was a material contributing cause to her

overall impairment. At first glance, our prior cases, includ-

ing Johnson, appear to support that proposition. After all,

we do not understand either party in this case to be contend-

ing that the reduced range of motion and decreased stabil-

ity findings represent a combining of claimant’s workplace

injury with any preexisting condition.3 Without a combined

condition, claimant is correct that she is entitled to the full

measure of her impairment that is due, in material part, to

the compensable injury. We have reaffirmed that principle

3

Even if either party were to assert that the range of motion and stabil-

ity findings represent a combining of the workplace injury and claimant’s pre-

existing body habitus, a claim that neither party appears to make here, the

alleged “combined condition” would still not qualify for apportionment because

it was never previously identified and considered following the statutory pro-

cess laid out by the legislature. As we have explained before, we understand the

requirement that there be a preclosure denial of the preexisting condition as a

way of ensuring that the injured worker had notice and an opportunity to chal-

lenge a denied claim. See Caren, 365 Or at 486 (“The legislature created a process

that guarantees sufficient notice because the process requires a written denial of

a ‘combined condition’ before the employer reduces the impairment to account for

a preexisting condition, and we conclude that the legislature intended employers

to follow that process to obtain the benefit of that reduction.”). We do not need

to examine whether this situation would have qualified as a combined condition

claim, as we do not understand the parties to make that argument, but we note

that, as we understand the record here, there was no preclosure denial issued.

Cite as 369 Or 767 (2022) 781

many times before. See, e.g., Barrett II, 300 Or at 555-56;

Johnson, 369 Or at 603. But those cases do not implicate the

same question that is before this court here.

Directly comparing this case to our recent decision in

Johnson reveals why this case necessitates a different result

under the workers’ compensation statutes. Unlike Johnson,

this case does not involve a situation where the loss of use

or function at issue was caused in material part by the com-

pensable injury, but also had other contributing causes. As

explained above, the permanent partial disability award at

issue in Johnson was initially reduced according to the por-

tion of the claimant’s impairment that the medical arbiter

determined to be related to a specifically denied condition.

On review, we reversed the apportionment of the claimant’s

award, holding that the claimant in that case was entitled

to compensation for the full measure of that impairment

because the compensable injury was a material contribut-

ing cause. Johnson, 369 Or at 603. Here, however, multiple

distinct losses of use or function are at issue, and, based on

the evidence in the record and the ALJ’s findings, no part

of the claimant’s reduced range of motion or decreased sta-

bility findings could be attributed to the accepted condition.

That is the key fact that differentiates this case from our

prior cases.

ORS 656.214 makes clear that “impairment” is

“the loss of use or function of a body part or system due to

the compensable industrial injury or occupational disease.”

There is no dispute here that claimant suffered impairment

and that some of the loss of use or function of her right knee

was caused by the compensable injury. Claimant received

a permanent partial disability award of five percent whole

person impairment for the surgical value and the chronic

condition in her right knee because those were caused, in

material part (if not in whole), by the compensable injury.

Those impairment findings are not in dispute. But claim-

ant’s reduced range of motion and decreased stability in the

same knee are separate and distinct forms of loss of use or

function. To qualify as “impairment,” such that a claimant

is entitled to a value for that loss as part of their perma-

nent partial disability award, there are two requirements:

(1) that there is a loss of use or function of the body part or

782 Robinette v. SAIF

system, and (2) that that loss is “due to the compensable

injury.” ORS 656.214. Under that definition, a result of an

injury may be a loss of use or function to an injured worker’s

body part, but that does not mean that all loss of use or func-

tion of the body part will qualify as impairment for purposes

of calculating permanent partial disability because “impair-

ment” only includes loss of use or function that is “due to the

compensable injury.”

Claimant’s reduced range of motion and decreased

stability findings are a loss of use or function of her right

knee. But those losses fail to qualify as “impairment.” Review

of the medical arbiter’s determination and the record makes

clear that claimant’s reduced range of motion and decreased

stability in her right knee was not caused in material part,

or in any part, by the compensable injury.4 Accordingly,

those separate and distinct findings of loss of use or function

of claimant’s right knee are not “impairment” under ORS

656.214 and are not part of the calculation of claimant’s per-

manent partial disability award.

The workers’ compensation statutory structure is

designed in such a way that the injured worker has the bur-

den of proving the nature and extent of any disability result-

ing from the workplace injury. ORS 656.266(1). Claimant

did not meet that burden here with regard to the loss of use

or function of her right knee exhibited through the reduced

range of motion and decreased stability. Claimant did not

establish a connection between those findings of loss and

the work-related injury. Although claimant was awarded

4

As a conceptual matter, we acknowledge that it is difficult to understand

how claimant suffered new loss of use or function—the reduced range of motion

and decreased stability—in her right knee following a workplace injury but that

the workplace injury did not contribute to that loss in any way at all. Nonetheless,

those are the findings of the medical arbiter, and those findings were adopted by

the Workers’ Compensation Board in its final order. The administrative rules

governing workers’ compensation in Oregon make clear that, “when a medical

arbiter is used, impairment is established based on objective findings of the med-

ical arbiter, except where a preponderance of the medical evidence demonstrates

that different findings by the attending physician are more accurate and should

be used.” OAR 436-035-0007(5). It is not our place to set aside the factual finding

that claimant’s reduced range of motion and decreased stability were not caused

at all by the compensable industrial injury, particularly so because those find-

ings were made by a qualified medical professional, following the procedures in

the workers’ compensation statutes and the accompanying administrative rules

interpreting those statutes, and were adopted by the board in its final order.

Cite as 369 Or 767 (2022) 783

impairment for the surgical value and the chronic condition,

both of which were found to have been materially caused by

the workplace injury, the medical arbiter determined that

the reduced range of motion and decreased stability were

not related. Establishing that an injured worker has suf-

fered impairment does not automatically establish that the

injured worker is entitled to compensation for all new find-

ings of loss. Each distinct loss of use or function is still sub-

ject to the material cause standard and, ultimately, claim-

ant bears the burden of establishing the causal connection

between the loss findings and the compensable workplace

injury in order to qualify that loss as “impairment” for pur-

poses of calculating permanent partial disability. To hold

otherwise would lead to results that do not comport with the

“due to the compensable injury” wording in the definition of

“impairment” in ORS 656.214 and could lead to arbitrary

outcomes.

An example provided in the briefing of amici curiae

Oregon Business & Industry (OBI) and Providence Health &

Services writing in support of SAIF and the employer in this

case, is illustrative on this point. As OBI and Providence

point out, the knee is a part of a larger bodily system—the

leg. There are various different types of loss of use or func-

tion of the leg, or parts of the leg, that could give rise to

permanent partial disability awards following injury to a

knee. Consider, for instance, reduced range of motion and

leg length discrepancies. Those are separate and distinct

conditions that could give rise to different loss of use or

function of the leg. The process for rating permanent partial

disability awards for findings of loss related to those con-

ditions are laid out separately in the administrative rules.

See OAR 436-035-0220(1) (prescribing how to calculate rat-

ings of loss for reduced range of motion in the knee); OAR

436-035-0230(2) (prescribing how to calculate ratings of loss

for leg length discrepancies and specifically excluding loss

due to reduced range of motion). It is entirely possible that

a worker may have reduced range of motion due to a knee

injury, and also have a previously untreated leg length dis-

crepancy caused by a congenital defect. We see no reason in

the statutory language or the legislative history to suggest

that those two entirely distinct conditions—separate “loss

784 Robinette v. SAIF

of use or function”—should be considered a single “impair-

ment” for the purposes of calculating an award of permanent

partial disability. Doing so would be at odds with the legisla-

ture’s goal of creating a workers’ compensation system that

provides compensation to injured workers for “those injuries

that bear a sufficient relationship to employment to merit

incorporation of their costs into the stream of commerce.”

See ORS 656.012 (announcing specific legislative findings

and policy objectives related to the workers’ compensation

statutory structure). Instead, focusing on each distinct “loss

of use or function”—and separately applying the material

cause standard to determine whether that “loss of use or

function” is “due to the compensable injury”—will properly

provide compensation to claimants who meet the burden of

establishing the connection between each loss of use or func-

tion and the workplace injury, and will protect insurers and

self-insured employers from paying for wholly unrelated

conditions.

III. CONCLUSION

Here, claimant suffered from reduced range of

motion and decreased stability in her right knee following

a workplace incident. A medical arbiter, however, attributed

those findings entirely to either body habitus or preexisting

osteoarthritis, but not at all to the workplace injury. 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 either of those loss findings,

claimant was not entitled to a value for those findings in her

award for permanent partial disability.

The decision of the Court of Appeals is reversed.

The order of the Workers’ Compensation Board is affirmed.