# Jackson v. Tuality Community Hospital

> Court of Appeals of Oregon · December 28, 1994 · 132 Or. App. 182

URL: https://www.frixlaw.com/law-library/cases/9592587

## Case

- **Full name:** In the Matter of the Compensation of Janet K. Jackson, Claimant. Janet K. JACKSON, Petitioner, v. TUALITY COMMUNITY HOSPITAL and SAIF Corporation, Respondents
- **Court:** Court of Appeals of Oregon
- **Decided:** December 28, 1994
- **Citations:** 132 Or. App. 182; 888 P.2d 35; 1994 Ore. App. LEXIS 1956
- **Precedential status:** Published
- **Opinion:** Concurring in part by Riggs
- **Judges:** Deits, Riggs, Landau, Haselton
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9592587

## Opinion text

RIGGS, J.,
concurring in part; dissenting in part.
I agree with the majority’s disposition of claimant’s argument regarding the Board’s application of the temporary rules. However, I do not agree with the majority’s conclusion that the Board correctly excluded the medical exhibits offered by claimant. Accordingly, I dissent.
ORS 656.268(7), which controls our disposition of this issue, provides:
“If the basis for objection to a notice of closure or determination order 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. At the request of either of the parties, a panel of three medical arbiters shall be appointed. * * * The *188 medical arbiter or panel of medical arbiters may examine the worker and perform such tests as may be reasonable and necessary to establish the worker’s impairment. * * * The findings of the medical arbiter or panel of medical arbiters shall be submitted to the department for reconsideration of the determination order or notice of closure, and no subsequent medical evidence of the worker’s impairment is admissible before the department, the board or the courts for the purpose of making findings of impairment on the claim closure.” (Emphasis supplied.)
In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020; PGE v. Bureau of Labor and Industries, 317 Or 606, 610 , 859 P2d 1143 (1993). The best evidence of legislative intent is the statute itself. 317 Or at 610-11 . I disagree with the majority’s conclusion that the language in ORS 656.268(7) is not clear. The plain, ordinary and natural meaning of the emphasized language is that medical evidence, prepared after the findings of a medical arbiter are submitted to DIF on reconsideration, is not admissible in any proceeding. The trigger for the exclusion of medical evidence is the submission of an arbiter’s report, not the appointment of an arbiter. Where, as here, no report has been submitted, the exclusion does not operate.
The majority distinguishes Scheller v. Holly House, 125 Or App 454 , 865 P2d 475 (1993), rev den 319 Or 36 (1994), because claimant here “voluntarily boycotted [the] process,” i.e., she refused to submit to the arbiter’s examination. However, in Scheller, the claimant also voluntarily boycotted the process. In Scheller, it was the claimant’s action in not challenging impairment on reconsideration that led the director not to appoint an arbiter. 125 Or App at 456 ; see also ORS 656.268(2). In both cases, a claimant’s unilateral action allows medical evidence prepared after the reconsideration process to be considered by the referee. Any distinction between the two cases is illusory.
My reading of the statute does not allow a claimant to completely circumvent the statutoiy procedures. The statute only provides that “[t]he medical arbiter or panel of medical arbiters may examine the worker.” (Emphasis supplied.) The statute does not require an examination by a medical arbiter. If a claimant refuses to cooperate in the examination process, the medical arbiter may nevertheless prepare and submit a *189 report using the medical evidence already before DIF. That was not done here. Had it been done, my reading of ORS 656.268(7) would potentially result in the proper exclusion of claimant’s medical evidence prepared after the findings of the medical arbiter.
The Board erred when it decided that the medical evidence prepared after the appointment of the medical arbiter should be excluded. Because I believe that the majority misreads ORS 656.268(7), I dissent.
Landau and Haselton, JJ., join in this concurring and dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9592587. Public record. Not legal advice.