# Gage v. Fred Meyer Stores - Kroger Co.

> Court of Appeals of Oregon · December 6, 2023

URL: https://www.frixlaw.com/law-library/cases/9907504

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** December 6, 2023
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 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/9907504

## How later opinions describe it (automated extraction)

- explaining that, if the board asserts a finding of fact in explaining its decision to disregard certain evidence, that fact “is subject to attack” if it is not, itself, supported by substantial evidence

## Opinion text

360 December 6, 2023 No. 634

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

In the Matter of the Compensation of
Monika M. Gage, Claimant.
Monika M. GAGE,
Petitioner,
v.
FRED MEYER STORES - KROGER CO.,
Respondent.
Workers’ Compensation Board
1900021OM; A177315

Argued and submitted February 14, 2023.
Julene M. Quinn argued the cause and filed the briefs for
petitioner.
Rebecca A. Watkins argued the cause for respondent.
Also on the brief was SBH Legal.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Reversed and remanded.
Cite as 329 Or App 360 (2023) 361

MOONEY, J.
This is an “own motion” workers’ compensation
claim on judicial review from the Workers’ Compensation
Board (board).1 Claimant seeks judicial review of the
“Second Own Motion Order Reviewing Carrier Closure on
Reconsideration,” which affirmed the self-insured employ-
er’s notice of claim closure without an award for additional
permanent disability. The primary issue before the board
was whether claimant’s facet cyst at L4-5, a newly accepted
medical condition initiated after aggravation rights had
expired, or any direct sequelae attributable to that cyst,
resulted in any additional permanent impairment or work
restrictions. After rejecting the report of the medical arbi-
ter panel as “ambiguous,” and relying instead on the opin-
ion of an attending physician, the board determined that
claimant’s facet cyst at L4-5 did not qualify as an additional
impairment resulting from a previous, compensable injury.
The board, thus, concluded that claimant was not entitled to
a redetermination of her permanent disability.
Claimant seeks reversal of the board’s order and
raises three assignments of error. The first two assignments
challenge as unsupported by substantial evidence and rea-
son the board’s findings that the arbiter panel opinion was
ambiguous, and that an attending physician’s report was
more accurate and persuasive. In her third assignment,
claimant argues that the board’s order violates constitu-
tional and statutory provisions by refusing to seek clarifi-
cation of the ambiguity from the arbiter panel and refusing
to obtain another medical arbiter report. We conclude that
substantial evidence and reason do not support the board’s
determinations that the medical arbiter panel’s report was
ambiguous, and that the attending physician’s report was
more accurate. We need not, and do not, reach the third
assignment of error. We reverse and remand.
We review legal issues for errors of law and fac-
tual issues for substantial evidence. ORS 183.482(8)(a), (c);
SAIF v. Williams, 281 Or App 542, 543, 381 P3d 955 (2016).
1
ORS 656.278 gives the board the authority to modify orders and awards
on its own motion, even after the expiration of a claimant’s “aggravation rights.”
That authority is referred to as “own motion” jurisdiction.
362 Gage v. Fred Meyer Stores - Kroger Co.

“[S]ubstantial evidence supports a finding when the record,
viewed as a whole, permits a reasonable person to make the
finding.” Garcia v. Boise Cascade Corp., 309 Or 292, 294,
787 P2d 884 (1990). Our review for substantial evidence
necessarily includes review for substantial reason because
our task is to determine whether the board adequately
explained how it got from the factual findings that it made
to the legal conclusions that it reached that caused it to issue
its order. SAIF v. Harrison, 299 Or App 104, 105, 448 P3d
662 (2019). We recount the pertinent facts adopted by the
board and from claimant’s medical records. Harvey v. SAIF,
286 Or App 539, 540, 398 P3d 944 (2017).
Claimant sustained work-related injuries in 2005
when she slipped and fell at work. She filed a workers’ com-
pensation claim, which her employer accepted in its capac-
ity as claimant’s self-insured employer, for various disabling
injuries, including right lumbar strain and a herniated
L5-S1 disc. Dr. Moore, an orthopedic surgeon, performed two
surgeries on the L5-S1 region, and claimant was awarded
permanent disability. The claim was closed in December
2012, with claimant’s right to claim additional compensa-
tion for worsened conditions—her “aggravation rights”—set
to expire in December 2017, under ORS 656.273(4)(a).2
In June 2013, an MRI revealed, among other things,
a developing cyst at claimant’s L4-5 disc level. Dr. Andrews,
a physician in Moore’s clinical practice who specializes in
nonsurgical approaches to conditions of the spine, attempted
to treat the cyst by aspiration and injection but those efforts
were not successful. Moore then requested authorization
for an L4-5 posterior discectomy and laminectomy, but that
claim was initially denied.
After it was later determined that the proposed sur-
gery would be compensable, but before the surgery occurred,
Moore ordered a second MRI. In June 2015, the second MRI
was read and reported as showing that the cyst was no

2
ORS 656.273(4) provides, in part,
“The claim for aggravation must be filed within five years:
“(a) After the first notice of closure made under ORS 656.268 for a disabling
claim[.]”
Cite as 329 Or App 360 (2023) 363

longer present. Because the cyst appeared to have resolved,
the employer sought to close the claim.
The employer retained Dr. Ha, an orthopedic sur-
geon, to perform the closing examination. Ha concluded that
claimant’s conditions were medically stationary, and that
she could perform sedentary or light work. It was his opin-
ion that no further surgical intervention would be required
because the 2015 MRI indicated that the cyst had resolved.
Andrews concurred, and claimant’s claim was closed with-
out an additional permanent disability award.
Moore concluded that the 2015 MRI had not been cor-
rectly read or reported by the radiologist. Moore documented
that she could “see the cyst very clearly on the sagittal view” of
the 2015 MRI study itself. She ordered a follow-up MRI, which
was completed in June 2016. That MRI showed a cyst at the
L4-5 disc, along with an L4-5 herniation and nerve impinge-
ment on both the left and right sides. Moore again requested
authorization for an L4-5 discectomy and decompression for
the purpose of accomplishing surgical decompression and to
excise the cyst. That request was again denied.
Other arrangements were made for health insur-
ance coverage, and Moore performed the surgery without
approval from the employer. Upon request for additional
information, Moore confirmed that the surgery she per-
formed was the same surgery that she “had proposed in
early 2014 to decompress the spine and remove the cyst at
L4-5[.]” Reimbursement for the surgery was again denied
when the employer determined that the surgery “was
directed to claimant’s denied bilateral L4-5 lateral recess
and foraminal stenosis.”
In April 2018, claimant submitted a request to add
a new/omitted medical condition claim for the cyst. The
employer accepted the new claim which was then reopened
for processing. As part of its investigation, the employer
sent a check-the-box questionnaire to Andrews asking if he
“consider[ed] the L4-5 facet cyst condition to be medically
stationary as of, at the latest, June 30, 2015, when a repeat
lumbar spine MRI showed ‘[t]he previously documented sub-
ligamentous right synovial cyst [was] no longer present.’ ”
364 Gage v. Fred Meyer Stores - Kroger Co.

Andrews checked the “yes” box. He similarly checked the “yes”
box indicating that he agreed that the L4-5 cyst did not result
in any additional permanent impairment or work restrictions.
A subsequent CT scan showed continued deteri-
oration of the L4-5 region and L5-S1 stenosis. Moore rec-
ommended an epidural steroidal injection, which Andrews
administered. After two such injections, claimant reported
only temporary relief, and Moore recommended an L4-5
decompression and fusion to treat claimant’s L4-5 stenosis
and spondylolisthesis. Moore performed the surgery in May
2019, and both Moore and Andrews reported that claimant’s
condition was improved.
In June 2019, the employer issued an Own Motion
Notice of Closure that did not award additional permanent
disability for claimant’s L4-5 synovial cyst. The closure was
based on Andrews’ “yes” responses concerning the cyst that
we just described. Claimant requested review.
THE BOARD’S REVIEW
On review, claimant requested that the board
increase her permanent disability award. Because she
contested Andrews’ statements about the cyst, she also
requested that the board appoint a medical arbiter under
OAR 438-012-0060(6)(a).3 The board referred the case to
the Appellate Review Unit (ARU) to appoint the arbiter.
The medical arbiter, a panel consisting of three physicians,
conducted an examination and reported its findings to the
ARU. In its report, the arbiter panel stated that it agreed
with Andrews that “the newly accepted condition is not con-
tributing to the noted motion loss in the lumbar spine.” It
concluded that “it is medically probable the loss of motion
* * * is related to the herniated disk at L4-L5 and the sub-
sequent surgeries to address th[at] issue.” The panel also
3
OAR 438-012-0060(6)(a) provides:
“(6) After the claimant requests Board review of a Notice of Closure of a ‘post-
aggravation rights’ new medical condition(s) or omitted medical condition(s)
claim * * *, the Board may refer the claim to the Director for appointment of
a medical arbiter to evaluate permanent disability attributable to the claim-
ant’s ‘post-aggravation rights’ new medical conditions(s) or omitted medical
conditions(s) if:
“(a) The claimant objects to the impairment findings used to rate impairment
* * * and requests appointment of a medical arbiter[.]”
Cite as 329 Or App 360 (2023) 365

noted that claimant had been using a walker on a consistent
basis since her most recent surgery—the 2019 L4-5 decom-
pression and fusion.
The ARU sent a request for additional information
to the arbiter panel:
“In your report you stated the worker stated since her most
recent [surgery] she needed to use a walker. For the record,
please respond to the following:
“1. Please indicate whether or not the worker is prevented
from being on her feet for more than two hours in an
8-hour period, due to the newly accepted condition(s) and
direct medical sequela of the newly accepted condition(s). If
so, please explain the necessity for this restriction.”
(Emphasis, underscore, and boldface in original.) The same
panel member who wrote the original report, Dr. Harris,
responded on behalf of the arbiter panel. He answered “Yes,”
and added “Too much pain + lack of motion after numerous
surgeries to low back,” and that “40% of the need for this
restriction is related to newly accepted condition, and 60%
is related to other accepted conditions.”4
The board affirmed the employer’s notice of clo-
sure. It declined to adopt the arbiter panel’s report, finding
it to be “ambiguous,” and reasoning that the report “was
made in the context of, and based on, claimant’s statements
that she needed to use a walker” since the 2019 surgery.
Noting that the 2019 surgery was “performed by Dr. Moore
to treat claimant’s L4-5 stenosis, which is a denied condi-
tion,” and that “the medical arbiter panel report erroneously
stated that claimant had no denied conditions,” the board
concluded that there was “no indication that the panel was
aware that Dr. Moore had recommended the surgery to treat
claimant’s L4-5 stenosis condition or that the condition had
been denied[.]” Because Andrews had greater “familiar-
ity with claimant’s conditions,” the board found that “his
impairment findings preponderate over those of the medi-
cal arbiter panel,” that they were “more accurate,” and that
they “should be used to rate claimant’s permanent impair-
ment.” Based on Andrews’ findings, the board concluded
4
The parties refer to this response from Harris as the panel’s supplemental
report.
366 Gage v. Fred Meyer Stores - Kroger Co.

that “there are no impairment findings * * * that support an
additional permanent disability award.”
Claimant requested reconsideration, arguing that
the medical arbiter panel’s opinion was not ambiguous and
that, under Hicks v. SAIF, 194 Or App 655, 96 P3d 856,
adh’d to as modified on recons, 196 Or App 146, 100 P3d
1129 (2004), the board could not disregard the medical arbi-
ter panel’s opinion. Instead, she argued, the board must seek
clarification from the arbiter panel. She also argued that
Andrews’ opinion was based on an old MRI and was there-
fore neither accurate nor current. The board disagreed and
affirmed its decision finding Andrews’ report to be more per-
suasive than the panel’s report because he was more famil-
iar with claimant and her medical history. The board also
determined that it lacked the authority to send the report
back to the medical arbiter panel for clarification.
Claimant again requested reconsideration, this
time arguing, among other things, that because the board
would not allow correction of the arbiter panel’s report that
the board had concluded was ambiguous, she was effectively
left without the ability to challenge the board’s reliance on
Andrews’ report over that of the panel. The board again
affirmed its decision, and claimant petitioned for judicial
review.
THE BOARD’S “OWN MOTION” JURISDICTION
ORS 656.278(1) authorizes the board to “modify,
change or terminate former findings” on its own motion.
That authority is limited to cases in which a condition
for which the board has awarded disability worsens, ORS
656.278(1)(a), or in cases where the claimant’s aggravation
rights have expired and a new medical condition thought
to be materially related to the original workplace injury is
accepted for the first time, ORS 656.278(1)(b). All relevant
statutes that control disability awards “apply equally to” the
board’s orders under ORS 656.278. Edward Hines Lumber
Co. v. Kephart, 81 Or App 43, 46, 724 P2d 837 (1986).
Pursuant to ORS 656.278, the board has promul-
gated rules to govern its “own motion jurisdiction.” An own
motion claim is processed first by the workers’ compensation
Cite as 329 Or App 360 (2023) 367

carrier or, as here, by the self-insured employer. OAR 438-
012-0020(1). The carrier will close the claim and provide
any award of permanent disability once the new or previ-
ously omitted condition has become medically stationary.
OAR 438-012-0055.
The findings of the injured worker’s attending phy-
sician are generally used to determine when a condition is
medically stationary and the degree of impairment caused
by that condition. OAR 436-035-0007(5)(a). When a worker
requests a medical arbiter examination, the arbiter’s report
is instead used to establish impairment—unless a prepon-
derance of the medical evidence establishes that the attend-
ing physician’s findings are more accurate. OAR 436-035-
0007(5)(b); SAIF v. Banderas, 252 Or App 136, 145, 286
P3d 1237 (2012). If the arbiter’s report is ambiguous as to
whether impairment is the result of a compensable injury,
the board must interpret the report to determine whether
the report attributes impairment to the injury. See Harvey,
286 Or App at 546-47 (where the board did not interpret an
ambiguous arbiter’s report, we could not review the board’s
inferences for substantial evidence).
As we have already mentioned, claimant’s first two
assignments of error contend that there was not substan-
tial evidence to support the board’s conclusion that the med-
ical arbiter’s report was ambiguous or its conclusion that
Andrews’ report was more accurate and reliable than the
arbiter panel’s report. We address each of those assertions
in turn.
THE MEDICAL ARBITER PANEL REPORT
In her first assignment of error, claimant asserts
that the board lacked substantial evidence and reason to
conclude that the medical arbiter panel report was ambigu-
ous. She argues that the arbiter panel clearly identified the
newly accepted condition, and unambiguously attributed 40
percent of her impairment to that condition. The employer
disagrees, arguing that the panel’s original and supplemen-
tal reports contradict one another, and that it is unclear
from the report if the panel understood the scope of their
task because the original report did not identify the newly
368 Gage v. Fred Meyer Stores - Kroger Co.

accepted condition, and it did not indicate that there were
denied conditions.
We review the board’s conclusion that the arbiter
panel report was ambiguous by focusing on the conclusions,
rather than the reasoning, of the arbiter panel. For example,
in Khrul v. Foremans Cleaners, 194 Or App 125, 93 P3d 820
(2004), we concluded that substantial evidence supported
the board’s conclusion that the arbiter panel’s report that
“claimant’s impairment ‘at this time’ is 35 percent” was
ambiguous as to the permanency of the impairment. Id. at
132. Noting that “it is possible to infer that * * * the reported
35 percent impairment was permanent impairment,” we
concluded that the report also “permit[ted] an inference
that, although claimant had impairment at the time of rat-
ing, [the arbiter] believed that the impairment was not per-
manent or caused by the compensable condition and would
resolve after claim closure.” Id. In Harvey, we agreed that
substantial evidence supported a conclusion that the report
was ambiguous where the board “could have found that the
arbiters did not believe claimant’s [impairment] to be the
result of her injury.” 286 Or App at 546. Alternatively, “the
board could have concluded that the arbiters did attribute
claimant’s [impairment] to her brain injury[.]” Id.
Conversely, when a medical arbiter is used and its
report is clear and unambiguous, “impairment is established
based on the objective findings of the medical arbiter.” OAR
436-035-0007(5)(b). The ultimate question in Hicks was
whether the board was free to reject the medical arbiter’s
unambiguous report when it was the only opinion of impair-
ment. On reconsideration, we said that the medical arbiter’s
report was unambiguous in attributing impairment to the
compensable condition, and we emphasized that the board
was not free to interpret that report to conclude that it was
not persuasive and reject it. Hicks v SAIF, 196 Or App 146,
151-52, 100 P3d 1129 (2004). In this case, the arbiter pan-
el’s report likewise unambiguously attributed claimant’s
impairment to the compensable new condition. Whether a
report is ambiguous is a separate question from whether it
is persuasive. Considering the thought process and method
by which an arbiter reaches its conclusions is useful in
Cite as 329 Or App 360 (2023) 369

determining the persuasiveness of the report. But the per-
suasiveness of a report is not relevant to whether its con-
clusions are ambiguous. Here, the medical arbiters’ report
attributed “40% of the need * * * to [the] newly accepted
condition, and 60% * * * to other accepted conditions.” That
attribution of impairment is unequivocal. It does not give
rise to competing inferences and it is not ambiguous.
The employer argues that there is “a contradiction”
between the original panel’s report and the supplemental
report because the original “stated no reduction in motion
could be related to the facet cyst,” while the second report
attributed impairment to the cyst. But there is no contradic-
tion. The first report stated that the new condition did not
contribute to claimant’s loss of motion in her lumbar spine.
The second report answered the question put to it about
whether claimant was “prevented from being on her feet for
more than two hours in an 8-hour period[.]” (Emphasis,
underscore, and boldface in original.) Those topics—loss of
spinal motion and inability to stand for two hours—are dif-
ferent. The panel’s report is not contradicted by its response
to follow-up questions. Its response to the follow-up inquiry
addresses a different topic than the one that the board now
points to in the first report as having been contradicted by
the panel in its response. The panel’s response to follow-up
questions does not create an ambiguity in the first report.
Neither substantial evidence nor substantial reason support
the board’s conclusion to the contrary.
We address claimant’s second assignment of error
because the issue that it raises is likely to arise on remand.
See State v. Savage, 305 Or App 339, 342, 470 P3d 387 (2020)
(“[W]e will consider issues likely to arise on remand when
the trial court or agency has determined a question of law
that will still be at issue after the case is remanded.”).
ANDREWS’ REPORT
In her second assignment, claimant asserts that
substantial evidence and reason “do not support the board’s
finding that Dr. Andrews’ report regarding claimant’s per-
manent disability * * * was more accurate and persuasive”
than the arbiter panel’s report. The employer responds,
370 Gage v. Fred Meyer Stores - Kroger Co.

first, that Andrews had greater familiarity with claimant’s
medical history than did the panel and, next, that Andrews’
opinion was better aligned with claimant’s medical history
than was the panel’s. We review each of the board’s conten-
tions for substantial evidence and reason. See Garcia, 309
Or at 296 (explaining that, if the board asserts a finding of
fact in explaining its decision to disregard certain evidence,
that fact “is subject to attack” if it is not, itself, supported by
substantial evidence).
The board ties its conclusion that the panel did
not consider all of claimant’s medical history in forming its
opinion to claimant’s statement that she needed a walker
after her most recent surgery, which was performed for a
denied condition. But the panel did not list that statement,
directly or otherwise, as a basis for its final conclusion.
And the board points to nothing else in the report or in the
record to suggest that the panel relied on, or was signifi-
cantly influenced by, claimant’s statement about when she
began using a walker. Moreover, the board’s contention that
the panel’s report “erroneously stated that claimant had no
denied conditions” does not explain or otherwise add rea-
son to its decision to reject the panel’s report and to instead
rely upon Andrews’ opinion. The medical arbiter panel, like
Andrews, examined the claimant after reviewing medical
records detailing her medical history, and then reached
diagnostic opinions about her conditions, potential causes
of those conditions, and related levels of impairment. The
panel’s failure to accurately designate certain medical con-
ditions as “accepted” or “denied” for workers’ compensation
purposes is not relevant to its medical opinions about those
conditions.
Similarly, the board’s reliance on Andrews’ opin-
ion because he was more familiar with claimant’s condi-
tions is not supported by substantial evidence or reason.
Andrews concluded in 2015 that claimant’s L4-5 facet cyst
had resolved based on an MRI report from that same year.
Certainly, resolution of the cyst then might have been evi-
dence that Andrews’ aspiration of the cyst in July 2013
had been successful. But the board made an express find-
ing that the 2016 MRI confirmed that the cyst had not, in
Cite as 329 Or App 360 (2023) 371

fact, resolved and that Moore ended up removing the cyst
in a subsequent surgery. That finding was consistent with
Moore’s conclusion, reached after visualizing the 2015 MRI
images—in particular the sagittal view in which the cyst
was visible—and her surgical findings from the later sur-
gery when she excised the cyst.
It is not clear why the board selected Andrews
rather than Moore as claimant’s attending physician given
that they both treated her spinal conditions, non-surgically
and surgically, respectively. It is clear, though, that the rea-
sons the board gave for its conclusion that Andrews’ opinion
was “more accurate and persuasive” than that of the panel
is not based on substantial evidence or reason. More impor-
tantly, and as we have explained, the arbiter panel’s report
is not ambiguous. Because we are reversing and remanding
on those bases, there is no need for us to address the third
assignment of error, and we do not do so.
Reversed and remanded.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9907504. Public record. Not legal advice.