Schleiss v. SAIF Corp.

No. 66 December 27, 2013 637

66

Schleiss v. SAIF 354 Or

December 27, 2013

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Compensation of

Jon M. Schleiss, Claimant.

Jon M. SCHLEISS,

Petitioner on Review,

v.

SAIF CORPORATION

and Nugent Masonry, Inc.,

Respondents on Review,

and

DEPARTMENT OF CONSUMER

AND BUSINESS SERVICES,

Intervenor.

(WCB 0905174; CA A146996; SC S060774)

On review from the Court of Appeals.*

Argued and submitted September 16, 2013.

Donald M. Hooton, Hooton Wold & Okrent, LLP,

Beaverton, argued the cause and filed the brief for petitioner

on review.

Julie Masters, SAIF Corporation, Salem, argued the

cause and filed the brief for respondents on review SAIF

Corporation and Nuent Masonry Inc.

Michael A. Casper, Deputy Solicitor General, Salem,

argued the cause for Intervenor Department of Consumer

and Business Services. With him on the brief were Ellen F.

Rosenblum, Attorney General, and Anna M. Joyce, Solicitor

General.

Julene M. Quinn, Corvallis, and James S. Coon, Swanson

Thomas Coon & Newton, Portland, filed a brief on behalf of

amicus curiae Oregon Trial Lawyers Association.

______________

*  Judicial review from Workers’ Compensation Board. 250 Or App 458, 281

P3d 626 (2012).

638 Schleiss v. SAIF

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer and Baldwin, Justices.**

BREWER, J.

The decision of the Court of Appeals is reversed, and the

case is remanded to the Workers’ Compensation Board for

further proceedings.

Claimant appeals from a decision of the Court of Appeals affirming an order of

the Workers’ Compensation Board (Board) awarding claimant permanent partial

disability (PPD). The Board awarded claimant five-percent PPD based on a med-

ical arbiter’s finding that the majority of his impairment was caused by a preex-

isting mild degenerative condition and accelerated aging caused by his smoking.

Claimant appealed to the Court of Appeals, arguing that the Board’s order was

erroneous because the rule the Board relied on, OAR 436-035-0013, conflicted

with the controlling statute, ORS 656.214, because it allowed for apportionment

of his PPD award and such apportionment was only appropriate in combined-

condition claims under ORS 656.268(1)(b), and then only where legally cognizable

preexisting conditions were present. The Court of Appeals affirmed the Board’s

order. Held: OAR 436-035-0013 is inconsistent with ORS 656.214 because that

statute requires an award for impairment “due to” a compensable injury and does

not provide for apportionment of that award based on other contributing causes

that are not legally cognizable.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Workers’ Compensation Board for further proceedings.

______________

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

Cite as 354 Or 637 (2013) 639

BREWER, J.

Our review of an order of the Workers’ Compensation

Board (the board) that made a permanent partial disability

(PPD) award to claimant requires us to determine whether

OAR 436-035-0013 (2009), an administrative rule adopted

by the Director of the Department of Consumer and Business

Services (DCBS), is inconsistent with the statutes that the

Director intended to implement. We review to determine

whether the board has erroneously interpreted a provision

of law. ORS 183.482(8)(a)(B). For the reasons that follow, we

reverse the decision of the Court of Appeals, and we remand

this case to the board for further proceedings.

We take the material facts, in condensed form,

from the Court of Appeals’ opinion. Schleiss v. SAIF, 250 Or

App 458, 459, 281 P3d 626 (2012). Claimant compensably

injured his low back while at work in April 2008, and SAIF

accepted his ensuing claim for a lumbar strain. Claimant

was taken off work after his injury and, during the next

several months, received an extensive course of chiropractic

care before being referred to Dr. Jeffrey Gerry. After exam-

ining claimant in late 2008, Gerry opined that claimant had

“some symptoms suggestive of lumbar radiculopathy,” and

he referred claimant for a lumbar MRI. In February 2009,

Gerry reviewed the results of claimant’s MRI and reported

that “[t]here were no significant abnormalities noted.” Gerry

declared claimant medically stationary and released him to

regular work without restriction. Based on Gerry’s findings,

SAIF issued a notice of closure that did not award PPD ben-

efits to claimant.

Claimant requested reconsideration and the appoint-

ment of a medical arbiter, based on his disagreement “with

the impairment findings used to determine and rate per-

manent disability.” During a medical arbiter examination

in July 2009, claimant reported that he had attempted to

return to regular work in early March, but his back pain

had recurred. Claimant also reported that he had been

employed since that March attempt, but not in his regular

work. After examining claimant, the arbiter opined that

claimant “has some limitation in his ability to use the spinal

area. I would classify it as moderate. He cannot lift over 50

640 Schleiss v. SAIF

pounds and needs to avoid recurrent bending and twisting.”

The arbiter also stated that he “would attribute [claimant’s

impairment] findings mainly to the off the job factor”:

“This is based on the fact that his MRI demonstrates only

mild degenerative changes at L1-2 and L4-5. He however

does smoke and this contributes to an acceleration of the

aging process. Based on the evaluation I would rate 33% of

the problem secondary to his on-the-job and 67% secondary

to his pre-existing mild DJD and long history of smoking.”

Relying on the medical arbiter’s impairment find-

ings, the Appellate Review Unit (ARU) of DCBS issued an

order on reconsideration that awarded claimant PPD based

on five percent whole-person impairment and no work dis-

ability. Among other things, the order on reconsideration

concluded that, because only the portion of impairment

findings that were “due to” claimant’s compensable injury

receive a value under OAR 436-035-0013, his “value for loss

of range of motion,” 13.8 percent, was apportioned at 33 per-

cent, for an impairment value of 4.55 percent.1

In reaching that conclusion, the ARU relied on OAR

436-035-0013(1), which provides:

“The physician describes the current total overall find-

ings of impairment, then describes those findings that are

due to the compensable condition. In cases where a phy-

sician determines a specific finding (e.g. range of motion,

strength, instability, etc.) is partially attributable to the

accepted condition, only the portion of those impairment

findings that is due to the compensable condition receives

a value. When apportioning impairment findings, the phy-

sician must identify any applicable superimposed or unre-

lated conditions.”

That rule is intended to implement the Director’s author-

ity under two statutes. The first statute, ORS 656.726(4)(f)

(A), calls for the director to establish PPD standards and

criteria based on “the loss of use or function of a body part

*  * due to the compensable industrial injury.” The second

*

statute, ORS 656.214, which authorizes awards of PPD, pro-

vides, in part, that,

1

That figure was rounded up to 5 percent under applicable DCBS rules.

Cite as 354 Or 637 (2013) 641

“(1)(a)  ‘Impairment’ means 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.”

After the ARU issued its order on reconsideration,

claimant requested a hearing before an administrative law

judge (ALJ). Among other arguments, claimant contended

that the workers’ compensation statutes provide that “appor-

tionment is appropriate only in the context of an accepted

combined condition,” and that, because no qualifying com-

bined condition existed in this case, claimant was “entitled

to an award for all of his impairment as long as it was caused

in part by his accepted condition.”

The ALJ affirmed the reconsideration order, and the

board affirmed the ALJ’s order. On judicial review before the

Court of Appeals, claimant renewed his arguments before

the board; in particular, claimant asserted that OAR 436-

035-0013(1) is inconsistent with both the applicable statutes

and this court’s decision in Barrett v. D & H Drywall, 300 Or

325, 709 P2d 1083 (1985), on recons 300 Or 553, 715 P2d 90

(1986).

The Court of Appeals affirmed. As pertinent here,

the court reasoned that,

“[b]oth ORS 656.214(1)(a) and ORS 656.726(4)(f)(A) con-

template that PPD impairment benefits will be awarded

only for impairment that is ‘due to’ the compensable con-

dition. OAR 436-035-0013 implements those statutes by

describing the way in which overall findings of impairment

will be apportioned between those ‘[impairment] findings

that are due to the compensable condition’ and those that

are not. Put another way, the rule sets out the specific

method for implementing the legislature’s express intent

that workers receive PPD benefits only for impairment ‘due

to’ compensable conditions.

“* * * * *

“[W]here a physician determines that an injured worker’s

impairment is due partly to a previously undiagnosed non-

compensable condition—and the physician does not find that

the noncompensable condition was worsened or rendered

symptomatic by the compensable injury—apportionment is

642 Schleiss v. SAIF

appropriate. OAR 436-035-0013 (2009) is consistent with

those principles, it does not conflict with Barrett I or Barrett II

and the DCBS director did not lack statutory authority to

adopt that rule.”

Schleiss, 250 Or App at 464-66.

The statutory phrase “due to” is an inexact term—

that is, neither a term so precise that no interpretation is

necessary nor a term (such as “good cause”) indicating that

the legislature intended to delegate the determination of its

meaning to an agency charged with implementing the stat-

ute. See Springfield Education Assn. v. School Dist., 290 Or

217, 223, 621 P2d 547 (1980) (summarizing the categorization

of statutory terms). Accordingly, the Director’s construction

of the statutory term in his rule is not entitled to deference

on review. Id. at 224, 229. In effect, then, the ultimate issue

before us is whether the Court of Appeals’ construction of

ORS 656.214 is correct. If it is, then the Director’s rule is con-

sistent with the meaning of the statute; if not, then the rule

is inconsistent with the statute, and the board’s order in this

case is erroneous. In conducting that inquiry, we employ our

method of statutory construction set out in State v. Gaines,

346 Or 160, 171-72, 206 P3d 1042 (2009), to ascertain the

legislature’s intent. See also State v. Klein, 352 Or 302, 309,

283 P3d 350 (2012) (when construing statutes, court reviews

statutory text and context, including related statutes).

ORS 656.214 provides, in part:

“(1)  As used in this section:

“(a)  ‘Impairment’ means 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.

“* * * * *

“(c)  ‘Permanent partial disability’ means:

“(A)  Permanent impairment resulting from the com-

pensable industrial injury or occupational disease; or

“(B)  Permanent impairment and work disability result-

ing from the compensable industrial injury or occupational

disease.

Cite as 354 Or 637 (2013) 643

In defining “impairment” in ORS 656.214(1)(a), the

legislature used the term “due to” to describe the necessary

causal relationship between a compensable injury and the

loss of use or function of a body part or system. Claimant

asserts that, for purposes of an award under ORS 656.214,

“due to” means “caused in material part by,” so that, if the

compensable injury materially contributed to the total

impairment, all the impairment is “due to” the compensa-

ble injury. SAIF, on the other hand, asserts that the phrase

refers to the percentage of the worker’s total impairment

that was caused by the compensable injury, so that the per-

centage of the total impairment “due to” any other contrib-

uting cause must be excluded from an award.

On the surface of things, either of those proposed

meanings is plausible. The dictionary meaning of “due to”

is “because of.” Webster’s Third New Int’l Dictionary 699

(unabridged ed 2002). Consistently with that meaning, as

claimant asserts, “due to” could mean that a compensable

injury must have materially contributed to a worker’s total

impairment; alternatively, as SAIF contends, “due to” could

refer instead to the percentage of a worker’s total impair-

ment to which the compensable injury contributed. The res-

olution of the parties’ dispute therefore requires a detailed

examination of the pertinent statutory framework in an

effort to discern the meaning of the term in its context.

The standard for determining the compensability

of an injury is an appropriate point of departure. ORS

656.005(7)(a) provides, in part, that 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.” This court has construed the phrase

“arising out of” to mean that a workplace injury must be

a material contributing cause of disability or the need for

medical treatment in order to be compensable. Olson v. State

Ind. Acc. Com., 222 Or 407, 414, 352 P2d 1096 (1960). In

Olson the court stated:

“Reduced to its simplest form[,] ‘arising out of’ as used

in the act means the work or labor being performed was

a causal factor in producing the injury suffered by the

[worker]. It need not be the sole cause, but is sufficient if

644 Schleiss v. SAIF

the labor being performed in the employment is a material,

contributing cause which leads to the unfortunate result.”

Id. at 414-15 (internal citations omitted). That standard is

still recognized by this court as the test for establishing the

existence of a compensable injury under ORS 656.005(7)(a).

Hopkins v. SAIF, 349 Or 348, 351, 245 P3d 90 (2010).

The material contributing cause standard does

not govern the compensability of all conditions, however.

In 1990, the legislature amended ORS 656.005(7)(a) to

include subsections (A) and (B), pertaining to consequential

and combined conditions respectively, and to which a major

contributing cause standard applies. A major contributing

cause is one that “contributes more to the injury for which

the worker seeks compensation than all other causes com-

bined, or most of the cause.” Smothers v. Gresham Transfer,

Inc., 332 Or 83, 133-34, 23 P3d 333 (2001).2

ORS 656.005(7)(a) (A) and (B) provide:

“(A)  No injury or disease is compensable as a conse-

quence of a compensable injury unless the compensable

injury is the major contributing cause of the consequential

condition.

“(B)  If an otherwise compensable injury combines at

any time with a preexisting condition to cause or prolong

disability or a need for treatment, the combined condition

is compensable only if, so long as and to the extent that

the otherwise compensable injury is the major contribut-

ing cause of the disability of the combined condition or the

major contributing cause of the need for treatment of the

combined condition.”

ORS 656.005(24), in turn, defines the term “preexisting

condition”:

“(a)  ‘Preexisting condition’ means, for all industrial

injury claims, any injury, disease, congenital abnormality,

personality disorder or similar condition that contributes

to disability or need for treatment, provided that:

“(A)  Except for claims in which a preexisting condi-

tion is arthritis or an arthritic condition, the worker has

2

Similarly, a preexisting condition that is exacerbated by a work injury can

be compensable, but only if the work injury is the major contributing cause of a

“pathological worsening of the pre-existing condition.” ORS 656.225.

Cite as 354 Or 637 (2013) 645

been diagnosed with such condition, or has obtained medi-

cal services for the symptoms of the condition regardless of

diagnosis; and

“(B)(i)  In claims for an initial injury or omitted condi-

tion, the diagnosis or treatment precedes the initial injury;

“(ii)  In claims for a new medical condition, the diagnosis

or treatment precedes the onset of the new medical condi-

tion; or

“(iii)  In claims for a worsening pursuant to ORS

656.273 or 656.278, the diagnosis or treatment precedes

the onset of the worsened condition.”

In addition to enacting ORS 656.005(7)(a)(A) and

(B), in 1990 the legislature amended ORS 656.262(6)(b) to

require that a notice of acceptance must “specify what condi-

tions are compensable.” And, in the same session, the legis-

lature enacted ORS 656.262(6)(c) and (7)(b), which provide:

“(6)(c)  An insurer’s or self-insured employer’s accep-

tance of a combined or consequential condition under ORS

656.005(7), whether voluntary or as a result of a judgment

or order, shall not preclude the insurer or self-insured

employer from later denying the combined or consequential

condition if the otherwise compensable injury ceases to be

the major contributing cause of the combined or consequen-

tial condition.

“* * * * *

“(7)(b)  Once a worker’s claim has been accepted, the

insurer or self-insured employer must issue a written

denial to the worker when the accepted injury is no longer

the major contributing cause of the worker’s combined con-

dition before the claim may be closed.”

After an injury is determined to be compensable,

benefits are payable under specific statutes, including tem-

porary disability to replace lost wages (ORS 656.210), medi-

cal services (ORS 656.245), permanent disability to compen-

sate for permanent loss of earning capacity (ORS 656.214),

and vocational services for retraining (ORS 656.340).

To reiterate, ORS 656.214, the benefit statute at

issue here, provides, in part:

“(1)  As used in this section:

646 Schleiss v. SAIF

“(a)  ‘Impairment’ means 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.

“* * * * *

“(c)  ‘Permanent partial disability’ means:

“(A)  Permanent impairment resulting from the com-

pensable industrial injury or occupational disease; or

“(B)  Permanent impairment and work disability result-

ing from the compensable industrial injury or occupational

disease.

“* * * * *

“(e)  ‘Work disability’ means impairment modified by

age, education and adaptability to perform a given job.

“* * * * *

“(3)  Impairment benefits awarded under subsection

(2)(a) of this section shall be expressed as a percentage of

the whole person.”

Thus, permanent disability includes two parts—“impairment”

and “work disability.” “Impairment” means the objective loss

of use or function of a body part “due to” the compensable

injury, expressed as a percentage of the whole person. ORS

656.214(1)(a); 656.726(4)(f)(A). “Work disability” means

impairment modified by age, education, and adaptability to

perform a given job. ORS 656.214(1)(e).

When a worker who has suffered a compensable

injury becomes medically stationary,3 the insurer closes the

claim and awards any applicable benefits. ORS 656.268(1)(a);

(5). If the worker objects to the notice of closure or the award,

the worker may request reconsideration. ORS 656.268(5)(c).

For purposes of reconsideration, the Director must appoint

a medical arbiter if the worker’s physical impairment is in

question. ORS 656.268(8). The claimant has the burden to

establish the nature and extent of any impairment that is

3

“Medically stationary” means that “no further material improvement

would reasonably be expected from medical treatment, or the passage of time.”

ORS 656.005(17).

Cite as 354 Or 637 (2013) 647

due to the compensable condition. ORS 656.266. Impairment

must be established by a preponderance of medical evidence

based upon objective findings. ORS 656.726(4)(f)(A) and (B).

Objective findings of impairment might include, for exam-

ple, measurable changes in the claimant’s range of motion

or muscle strength. ORS 656.005(19).

To fully frame the disability award analysis, ORS

656.268(1) provides:

“(1)  One purpose of this chapter is to restore the

injured worker as soon as possible and as near as possi-

ble to a condition of self support and maintenance as an

able-bodied worker. The insurer or self-insured employer

shall close the worker’s claim, as prescribed by the Director

of the Department of Consumer and Business Services, and

determine the extent of the worker’s permanent disability,

provided the worker is not enrolled and actively engaged in

training according to rules adopted by the director pursu-

ant to ORS 656.340 and 656.726, when:

“(a)  The worker has become medically stationary and

there is sufficient information to determine permanent dis-

ability; [or]

“(b)  The accepted injury is no longer the major contrib-

uting cause of the worker’s combined or consequential con-

dition or conditions pursuant to ORS 656.005 (7). When the

claim is closed because the accepted injury is no longer the

major contributing cause of the worker’s combined or con-

sequential condition or conditions, and there is sufficient

information to determine permanent disability, the likely

permanent disability that would have been due to the cur-

rent accepted condition shall be estimated.”

Thus, the legislature has generally authorized the Director to

“determine the extent of the worker’s permanent disability”

in either of two circumstances: (1) when the worker is medi-

cally stationary and there is sufficient information to deter-

mine permanent disability, ORS 656.268(1)(a); or (2) where

a combined condition exists, the compensable injury is no

longer the major cause of the disability and no longer the

major cause of any need for treatment, and there is suffi-

cient information to determine permanent disability. ORS

656.268(1)(b).

648 Schleiss v. SAIF

Where, under ORS 656.268(1)(a), a claimant’s com-

bined condition has become medically stationary and the

accepted injury remains the major contributing cause of the

claimant’s combined condition, the entire combined condi-

tion—that is, the effect of the work injury and the preexist-

ing condition—remains compensable. ORS 656.005(7)(a)(B).

And, because the combined condition makes up the compen-

sable injury under ORS 656.214(1)(c), the entire condition is

rated for impairment at claim closure. That is, because there

is no other legally cognizable cause whose contribution may

be considered, all the claimant’s impairment is “due to” the

compensable injury under ORS 656.214(1)(a). On the other

hand, where ORS 656.268(1)(b) applies, the legislature has

implicitly provided for an apportionment of causes contrib-

uting to a worker’s impairment, so that the impairment “due

to” the compensable injury is limited to the percentage of

the total impairment to which the injury contributed. ORS

656.005(7)(a)(B); ORS 656.214(1)(c); ORS 656.268(1)(b).

One additional contextual matter merits attention as

we clear the decks for analysis. Before the 1990 amendments

to ORS 656.005(7) were enacted, this court had addressed

the nature of the necessary causal relationship under ORS

656.214 between impairment and the causes contributing to

it. In Barrett, the claimant had an underlying asymptomatic

arthritic condition in his low back before he suffered a com-

pensable fall that caused back pain. Barrett I, 300 Or at 327.

The employer denied any liability for the arthritic condition

but accepted responsibility for the compensable injury. Id. In

considering whether the claimant also was entitled to bene-

fits for his arthritic condition under ORS 656.214(5) (1985),4

this court held that nothing in that statute precluded the

board from including impairment caused by the worker’s

arthritic condition in making a PPD award. Id. at 330. On

reconsideration, the court clarified that impairment “due to

the compensable injury” included impairment triggered by a

compensable injury that had caused a previously asympto-

matic condition to become symptomatic. Barrett v. D & H

Drywall, 300 Or 553, 555-56, 715 P2d 90 (1986) (Barrett II).

4

ORS 656.214(5) (1985) provided that the criterion for a rating of disability

for permanent partial disability “shall be the permanent loss of earning capacity

due to the compensable injury.”

Cite as 354 Or 637 (2013) 649

In such circumstances, the court explained, the “loss of

earning capacity is ‘due to’ the compensable injury, and the

statute requires an award of compensation therefor.” Id.

The court emphasized, however, that its “decision [did] not

require any award of compensation” for a disease or result-

ing disability that existed before the compensable injury,

unless the compensable injury worsened or triggered symp-

toms of the underlying condition. Id.

As noted, in deciding this case, the Court of Appeals

distinguished Barrett, observing that, here, there was no

evidence that claimant’s workplace injury had worsened,

or triggered symptoms from, the other causes that contrib-

uted to claimant’s impairment. Schleiss, 250 Or App at 466.

Although that distinction is apt, its significance here is lim-

ited, because claimant’s theory does not depend on proof of

a worsening or the triggering of symptoms of either of those

other contributing causes. Instead, as discussed below, he

asserts that those contributing causes are immaterial to the

proper legal analysis.

However, Barrett is of doubtful utility here for

another fundamental reason. When Barrett was decided in

1985, no statute addressed the role in PPD award determi-

nations of impairment that is attributable to a preexisting

condition that has combined with a compensable injury.

Thus, in Barrett I, this court specifically noted the lack of

any reference to preexisting conditions in ORS 656.214. 300

Or at 330. However, the court concluded that the legislature’s

failure to mention preexisting conditions was insufficient to

indicate that impairment caused by such conditions should

be excluded from PPD awards that are due to a compensable

injury; indeed, the court relied on the fact that no statute

prohibited the board from including impairment caused by

preexisting conditions in such an award. Id. However, the

workers’ compensation statutes now provide specific stan-

dards for determining how and when conditions that “com-

bine” workplace injuries with preexisting conditions are

compensable and how and when impairment caused by such

conditions can be apportioned. In light of those statutory

changes, impairment attributable to a legally cognizable

preexisting condition now must be apportioned in a PPD

650 Schleiss v. SAIF

award where a combined condition has been established,

and the compensable injury is no longer the major con-

tributing cause of the impairment or the need for medical

treatment. Therefore, irrespective of the holding in Barrett,

if claimant’s claim had been for a combined condition and,

at the time of closure, his compensable injury was no lon-

ger the major contributing cause of his impairment or need

for treatment, under the current statutory regime his PPD

award would be reduced by the contribution of any legally

cognizable preexisting condition. ORS 656.268(1)(b).

The preceding overview provides the necessary

context for our consideration of the administrative rule at

issue here. OAR 436-035-0013(1) prescribes a standard for

determining the extent of a worker’s impairment when the

impairment is attributable both to a compensable injury and

to some other contributing cause. As discussed, the rule pro-

vides as follows:

“The physician describes the current total overall find-

ings of impairment, then describes those findings that are

due to the compensable condition. In cases where a phy-

sician determines a specific finding (e.g. range of motion,

strength, instability, etc.) is partially attributable to the

accepted condition, only the portion of those impairment

findings that is due to the compensable condition receives

a value. When apportioning impairment findings, the phy-

sician must identify any applicable superimposed or unre-

lated conditions.”

Claimant challenges the validity of the second

sentence of that subsection, which provides that, “In cases

where a physician determines a specific finding (e.g., range

of motion, strength, instability, etc.) is partially attrib-

utable to the accepted condition, only the portion of those

impairment findings that is due to the compensable condi-

tion receives a value.” According to claimant, that part of

the rule circumvents the combined condition process, and it

reduces impairment that otherwise would be awarded with-

out apportionment. Therefore, claimant reasons, the rule is

invalid.

SAIF responds that, because a portion of a worker’s

impairment may be due to a compensable injury and another

Cite as 354 Or 637 (2013) 651

portion may be due to other contributing causes, apportion-

ment is an appropriate method for the director to imple-

ment the statutes as written. According to SAIF, if claimant

wished to have an impairment caused in part by a preex-

isting condition included in his PPD award, he should have

attempted to establish that his compensable injury was the

major contributing cause of his impairment in a combined

condition claim. In SAIF’s view, claimant had the burden of

asserting and proving such a claim, and he failed to do so.

See ORS 656.266.5

We conclude that it is unnecessary to resolve the

parties’ disagreement concerning the burdens of asserting

and proving a combined condition claim, because there is no

evidence in the record that either of the contributing causes

on which the medical arbiter and the board relied is a legally

cognizable preexisting condition that would authorize the

apportionment of claimant’s impairment in a combined con-

dition claim. And, as elaborated below, that conclusion is

central to our resolution of this case.

We begin with the board’s apportionment of claim-

ant’s impairment based on the accelerated aging effects of his

smoking history. Age must, by statute, be considered as part

of an injured worker’s “work disability” award: “work dis-

ability” determinations include as considerations a worker’s

“age, education and adaptability to perform a given job.”

ORS 656.214(1)(e). The premise, of course, is that an older

worker generally is less adaptable to other employment and,

therefore, is entitled to receive a higher disability award for

5

ORS 656.266 provides:

“(1)  The burden of proving that an injury or occupational disease is com-

pensable and of proving the nature and extent of any disability resulting

therefrom is upon the worker. The worker cannot carry the burden of proving

that an injury or occupational disease is compensable merely by disproving

other possible explanations of how the injury or disease occurred.

“(2) Notwithstanding subsection (1) of this section, for the purpose of

combined condition injury claims under ORS 656.005 (7)(a)(B) only:

“(a)  Once the worker establishes an otherwise compensable injury, the

employer shall bear the burden of proof to establish the otherwise compensa-

ble injury is not, or is no longer, the major contributing cause of the disability

of the combined condition or the major contributing cause of the need for

treatment of the combined condition.

“(b) Notwithstanding ORS 656.804, paragraph (a) of this subsection

does not apply to any occupational disease claim.”

652 Schleiss v. SAIF

the same injury than a younger worker. DCBS’s own rules

recognize that principle; under the director’s permanent dis-

ability administrative rules, injured workers over 40 years

old are entitled to receive an additional point that increases

the work disability portion of their permanent disability

awards. OAR 436-035-0012(1) and (2).

That premise is reinforced by the fact that, on

the record before us, claimant’s posited accelerated aging

would not qualify as a preexisting condition under ORS

656.005(24). For any condition other than arthritis or an

arthritic condition to so qualify, the worker must have “been

diagnosed with such condition, or ha[ve] obtained medical

services for the symptoms of the condition regardless of

diagnosis.” ORS 656.005(24)(a)(A). There is no evidence in

the record that accelerated aging is a diagnosable condition

or that, even if it is, claimant ever was diagnosed with it or

treated for its symptoms before he suffered the workplace

injury that SAIF accepted. Accordingly, claimant’s accel-

erated aging would not qualify as a preexisting condition

for purposes of a combined condition analysis under ORS

656.005(7).

The same is true of claimant’s “mild degenerative

condition.” Although claimant had post-injury evidence of

a preexisting degenerative disc condition, the record does

not establish the existence of any preexisting disability or

impairment due to that condition. Dr. Gerry, claimant’s

examining physician, concluded that claimant had some

indications of a radiculopathy, and he obtained an MRI.

However, Gerry found no significant abnormalities in the

MRI results. And the medical arbiter merely described that

contributing cause as “mild degenerative change.”

Again we note that, as with claimant’s accelerated

aging, there is no evidence that claimant was diagnosed with

any degenerative condition before he suffered his workplace

injury. Accordingly, that contributing cause could qualify as

a preexisting condition only if it amounted to “arthritis” or

an “arthritic condition” under ORS 656.005(24)(a)(A). We

addressed the meaning of those statutory terms in Hopkins.

We held that, as used in that statute, “arthritis” “mean[s]

the inflammation of one or more joints, due to infectious,

Cite as 354 Or 637 (2013) 653

metabolic, or constitutional causes, and resulting in break-

down, degeneration, or structural change.” 349 Or at 364.

We also concluded that, to establish the existence of a preex-

isting arthritic condition, an employer must adduce expert

testimony that the claimant suffers from “inflammation

of whatever joint or joints it contends are affected by the

arthritic condition.” Id. at 363.

In this case, there is no evidence that the mild degen-

erative condition that the medical arbiter identified included

any inflammation of claimant’s joints. In addition, there is

no evidence that, before his compensable injury occurred,

claimant had been diagnosed with, or treated for, arthri-

tis or an arthritic condition. It follows that there is no evi-

dence from which the board could determine that claimant’s

degenerative condition was a legally cognizable preexisting

condition for the purpose of a combined condition analysis.

Because claimant’s accelerated aging and mild

degenerative condition were not legally cognizable preex-

isting conditions, they also could not trigger the apportion-

ment of claimant’s impairment in a true combined condition

claim. As noted, ORS 656.266(2)(a) provides:

“(2)  Notwithstanding subsection (1) of this section,

for the purpose of combined condition injury claims under

ORS 656.005 (7)(a)(B) only:

“(a)  Once the worker establishes an otherwise com-

pensable injury, the employer shall bear the burden of proof

to establish the otherwise compensable injury is not, or is

no longer, the major contributing cause of the disability of

the combined condition or the major contributing cause of

the need for treatment of the combined condition.”

That provision does not require an analysis of what, in some

general sense, has caused an injured worker to become

impaired or need treatment. Rather, it requires identifica-

tion of the major cause of any disability or need for treat-

ment of the combined condition, suggesting that the board

should compare only the contributions of the component

parts of the combined condition. To confirm the point, ORS

656.262(6)(c) refers simply to whether the otherwise com-

pensable injury is the major contributing cause of the com-

bined condition itself. Thus, the legislature has equated the

654 Schleiss v. SAIF

contributing causes of disability—including impairment—

of a combined condition with the contributing causes of the

combined condition.

Accordingly, other contributing causes—such as

the accelerated aging effects of a long smoking history or a

mild degenerative condition—that are neither encompassed

within the compensable injury nor are legally cognizable

preexisting conditions, play no role in the impairment calcu-

lus of a combined condition claim. Yet, in applying OAR 436-

035-0013(1), the board treated claimant’s accelerated aging

and mild degenerative condition as contributing causes that,

in effect, combined to produce claimant’s impairment and

required its apportionment under ORS 656.214.

That treatment is inconsistent with the statutory

scheme, because it is illogical to conclude that the legislature

intended to authorize the apportionment of an injured worker’s

impairment based on the contribution of such a cause.

That is so because, if that were the legislature’s intent, any

preexisting contributing cause would have to qualify for

apportionment under ORS 656.214, even where—because

a compensable injury was the major contributing cause of

the impairment—a statutorily cognizable preexisting con-

dition would not so qualify. It defies reason to believe that,

for purposes of apportionment of a worker’s impairment,

the legislature would afford such preferential treatment to

a preexisting contributing cause that would not be legally

cognizable in a combined condition claim. To the contrary,

if a preexisting contributing cause would not qualify to

reduce the impairment that is “due to” a compensable com-

bined condition under ORS 656.268(1)(b), it makes no sense

to conclude that such a cause would qualify to reduce the

impairment that is “due to” a claimant’s compensable injury

under ORS 656.214.6

There is no indication that the legislature intended

the phrase “due to” in ORS 656.214 to have a different mean-

ing than in ORS 656.268. In both statutes, depending on

6

We deliberately refer to a preexisting contributing cause in making this

point. This case does not present an occasion to decide whether—or under what

circumstances—a contributing cause arising after a compensable injury would be

legally cognizable for purposes of apportioning impairment under ORS 656.214.

Cite as 354 Or 637 (2013) 655

the circumstances, the phrase could require the apportion-

ment of a worker’s impairment based on contributing causes

that are unrelated to the compensable injury. However, to

qualify for the apportionment of impairment, a cause must

be legally cognizable. In this case, apart from the compen-

sable injury, there are no other legally cognizable contrib-

uting causes that claimant’s impairment is “due to” under

either statute. It follows that all of claimant’s impairment

is “due to” the compensable injury for purposes of making

a PPD award under ORS 656.214. The board nevertheless

treated claimant’s preexisting accelerated aging and mild

degenerative changes as contributing causes for purposes of

apportioning his impairment. Because the board’s order was

based on the Director’s rule, it is erroneous.7 ORS 183.482(8)

(a)(B).

The decision of the Court of Appeals is reversed, and

the case is remanded to the Workers’ Compensation Board

for further proceedings.

7

We note in passing that SAIF argues for the first time before this court

that claimant failed to exhaust his administrative remedies because he did not

establish that his impairment was due to his compensable injury rather than

“his preexisting mild [degenerative joint disease] and long history of smoking.”

As explained above, because those contributing causes cannot be considered in

rating claimant’s impairment, they do not support SAIF’s exhaustion argument.