Okon v. Broadspire

No. 225 March 25, 2026 1

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

In the Matter of the Compensation of Inemesit N. Okon,

Claimant.

Inemesit N. OKON,

Petitioner,

v.

BROADSPIRE

and Legacy Health,

Respondents.

Workers’ Compensation Board

2305542;

A186469

Argued and submitted February 19, 2026.

Jodie Anne Phillips Polich argued the cause for peti-

tioner. Also on the briefs was Law Offices of Jodie Anne

Phillips Polich, P.C.

Rebecca Watkins argued the cause for respondents. Also

on the brief were Jessica Fox and SBH Legal.

Before Tookey, Presiding Judge, Lagesen, Chief Judge,

and Kamins, Judge.

TOOKEY, P. J.

Reversed and remanded.

2 Okon v. Broadspire

TOOKEY, P. J.

Claimant seeks review of an order of the Workers’

Compensation Board (board) denying permanent partial

disability benefits at claim closure. Claimant contends that

the board erred in finding that “absent persuasive reasons

to the contrary, [the board] is not free to disregard a medical

arbiter’s unambiguous findings” and that the board failed

to adequately explain why it determined that the medical

arbiter’s findings were more persuasive than the findings

of claimant’s attending physician. Employer contends that

the board did not err because the board properly “relied on

a medical arbiter panel’s findings that claimant’s accepted

lumbar and pelvic strain conditions caused no lasting

impairment, attributing all measured limitations instead

to unrelated facts such as age, body habitus, and general

health.” Employer also contends that “a medical arbiter’s

objective findings control unless the claimant establishes

that the attending physician’s findings are more accurate,”

and that “absent persuasive reasons to the contrary, [the

board] is not free to disregard a medical arbiter’s unambigu-

ous findings.” Employer further contends that the board did

not err because the “arbiter panel’s findings were thorough,

unambiguous, and closer in time to reconsideration” and

because claimant “did not demonstrate by a preponderance

of the evidence that [her attending physician’s] findings

were more accurate than the arbiters’ findings.”1

We review the board’s legal conclusions for legal

error and its determinations on factual issues for sub-

stantial evidence, which includes substantial reason. ORS

183.482(8); Cummings v. SAIF, 197 Or App 312, 318, 105

1

In their briefing, the parties refer to both the “medical arbiter” and the

“medical arbiter panel” without clearly distinguishing between the two. ORS

656.268(8)(a) provides that if the basis for objection to a notice of closure is dis-

agreement with the impairment used in rating of the worker’s disability, the

director shall refer the claim to a medical arbiter, and ORS 656.268(8)(c) pro-

vides that, at the request of either of the parties, “the director shall appoint a

panel of as many as three medical arbiters.” At the reconsideration proceeding,

“[a]ny medical arbiter report may be received as evidence.” ORS 656.268(6)(f).

Here, claimant was examined by an arbiter panel consisting of two orthopedic

surgeons and one neurosurgeon. Having reviewed the parties’ briefing and their

arguments, we do not understand those arguments to turn on whether claimant

was examined by a medical arbiter or a medical arbiter panel, and that point does

not make a difference to our decision in this case.

Cite as 348 Or App 1 (2026) 3

P3d 875 (2005). Because we conclude that the board errone-

ously concluded that our case law required it to apply OAR

436-035-0007(5)(b) in a manner contrary to the standard

set by its plain text, we reverse and remand for further con-

sideration. ORS 183.482(8)(a)(B) (where agency has “errone-

ously interpreted a provision of law,” we may “[r]emand the

case to the agency for further action under a correct inter-

pretation of the provision of law”).

The findings of a claimant’s attending physician are

generally used to determine when a condition is medically

stationary and the degree of impairment caused by that con-

dition. OAR 436-035-0007(5)(a) (“Impairment is established

based on objective findings of the attending physician under

ORS 656.245(2)(b)(C) and OAR 436-010-0280.”). However,

when one party requests reconsideration of a closed claim,

a medical arbiter examination is conducted, and “impair-

ment 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 attend-

ing physician are more accurate and should be used.” OAR

436-035-0007(5)(b); see also SAIF v. Banderas, 252 Or App

136, 144-45, 286 P3d 1237 (2012) (“Where the attending

physician has provided an opinion of impairment and the

board does not expressly reject that opinion, OAR 436-035-

0007(5) expressly permits the board to prefer the attending

physician’s impairment findings, if the preponderance of the

medical evidence establishes that they are more accurate.”).

Here, claimant was injured at work on January 13,

2022. Claimant’s claim for disabling lumbar sprain, lum-

bar strain, sacroiliac joint sprain, and pelvic strain was

accepted by employer. Claimant was deemed medically sta-

tionary by her attending physician on February 7, 2023.

Claimant saw her attending physician again on July 12,

2023, at which time claimant’s attending physician updated

claimant’s range of motion measurements and confirmed

that claimant was working “full duty without restrictions.”

Claimant’s claim was closed on July 18, 2023, and claim-

ant was awarded 15 percent whole person impairment.

Employer requested reconsideration on the same day. Id.

On November 1, 2023, a medical arbiter panel conducted

4 Okon v. Broadspire

its examination, determining that any impairment find-

ings which had been attributed to the accepted conditions

were “100% * * * due to [claimant’s] age, general health, and

body habitus.” The board then stated that the findings of

the medical arbiter panel “unambiguously determined that

claimant did not have impairment, except restricted range

of motion” which was “not due to the accepted conditions.”

Claimant contends that the board erred in its appli-

cation of the legal standard by introducing limiting language

about a medical arbiter panel’s “unambiguous findings.” In

response, employer contends that the board’s reference to

“unambiguous findings” is consistent with our case law. See

Hicks v. SAIF, 194 Or App 655, 660, 96 P3d 856, adh’d to

as modified on recons, 196 Or App 146, 100 P3d 1129 (2004)

(determining that a board is not free to disregard the med-

ical arbiter’s opinion when “the medical arbiter’s report

unambiguously attributed 100 percent of claimant’s reduced

* * * range of motion to the accepted injury” in the absence of

other evidence); see also Gage v. Fred Meyer Stores - Kroger

Co., 329 Or App 360, 368, 540 P3d 592 (2023), adh’d to as

modified on recons, 330 Or App 669, 549 P3d 1283 (2024)

(determining that “the board is not free to interpret [the

medical arbiter panel’s] report to conclude that it was not

persuasive and reject it” in favor of claimant’s attending

physician’s report unless the board’s decision is supported

by substantial evidence and substantial reason).

Having reviewed the record and the law, we con-

clude that the board erred when it stated that OAR 436-

035-0007(5)(b) requires the board to establish impairment

“based on the objective findings of the medical arbiter” when

“a medical arbiter is used and its report is clear and unam-

biguous.” We conclude that the board also erred when it

stated that “absent persuasive reasons to the contrary, [the

board is] not free to disregard a medical arbiter’s unambig-

uous findings.”

OAR 436-035-0007(5)(b) requires that “impairment

is established based on objective findings of the medical

arbiter, except where a preponderance of the medical evi-

dence demonstrates that different findings by the attend-

ing physician are more accurate and should be used.” Here,

Cite as 348 Or App 1 (2026) 5

we understand the board to have interpreted our decisions

in Hicks and Gage to require that when there is a report

from an attending physician and a report from a medical

arbiter, the board must first determine if the medical arbi-

ter’s report is “unambiguous,” and, if it is “unambiguous,”

then the board must use the medical arbiter’s report “absent

persuasive reasons to contrary.” However, unlike in this

case, in Hicks, “the medical arbiter’s opinion [was] the only

opinion of impairment and unambiguously attribute[d] the

claimant’s permanent impairment to the compensable con-

dition.” Hicks, 196 Or App at 151. Also unlike in this case,

in Gage, the board chose to rely on the attending physician’s

report rather than the medical arbiter panel’s report, and

we reversed because “the reasons the board gave for its con-

clusion that [the attending physician’s] opinion was more

accurate and persuasive than that of the panel [were] not

based on substantial evidence or reason.” Gage, 329 Or App

at 371 (internal quotation marks omitted).

But when, as here, one party requests reconsider-

ation and there is a report from an attending physician and

a report from a medical arbiter panel, the board is required

to apply OAR 436-035-0007(5)(b) and establish impair-

ment “based on the objective findings of the medical arbi-

ter, except where a preponderance of the medical evidence

demonstrates that different findings by an attending phy-

sician are more accurate and should be used.” Because, as

noted above, the board misapplied the analysis set forth in

Hicks and Gage to this case, we reverse and remand for the

board to revisit and reconsider its analysis under OAR 436-

035-0007(5)(b).

Reversed and remanded.