The opinion
No. 90 February 14, 2024 669
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
On respondent’s petition for reconsideration filed
December 19, 2023, and petitioner’s response filed December
22, 2023. Opinion filed December 6, 2023. 329 Or App 360
(2023)
Rebecca A. Watkins and SBH Legal for petition.
Julene M. Quinn for response.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Reconsideration allowed; opinion modified and adhered
to as modified.
670 Gage v. Fred Meyer Stores-Kroger Co.
MOONEY, J.
Respondent (Fred Meyer) has petitioned for recon-
sideration of our decision in Gage v. Fred Meyer Stores -
Kroger Co., 329 Or App 360, 540 P3d 592 (2023). This is an
“own motion” workers’ compensation claim that was before
us on claimant’s petition for judicial review of an order of the
Workers’ Compensation Board (board) that affirmed case
closure without an award for additional permanent disabil-
ity. Fred Meyer points to two sentences in our opinion that
it claims are incorrect or confusing, and it describes three
other places in the opinion that it likewise perceives to be
“incomplete and inaccurate” and it asks us to correct those.
Claimant responds that she “might word some of the factual
recitation a bit differently or be more precise in terms of
workers’ compensation parlance,” but argues that the state-
ments are not inaccurate. We allow the petition to clarify
certain factual statements in our opinion, described below,
but otherwise adhere to our prior decision.
At one point, the opinion states that, “the board
determined that claimant’s facet cyst at L4-5 did not qualify
as an additional impairment resulting from a previous, com-
pensable injury.” Id. at 361. That statement is inaccurate.
We amend that phrase by replacing it and the full sentence
that immediately follows that phrase to state, “the board
determined that claimant’s facet cyst at L4-5 did not result
in additional impairment and that claimant was not enti-
tled to a redetermination of her permanent disability.”
At another point, the opinion states that claimant
“filed a workers’ compensation claim which her employer
accepted * * * for various disabling injuries, including right
lumbar strain and a herniated L5-S1 disc.” Id. at 362. We
amend that sentence to state, “She filed a workers’ compen-
sation claim that resulted in her employer accepting various
disabling conditions.”
At another point, the opinion states: “That MRI
showed a cyst at the L4-5 disc, along with an L4-5 herni-
ation and nerve impingement on both the left and right
sides.” Id. at 363. We amend that sentence by deleting the
words “on both the left and right sides.”
Cite as 330 Or App 669 (2024) 671
And, finally, Fred Meyer asserts that the opinion
incorrectly states that Dr. Moore confirmed that the sur-
gery she performed in 2016 was for the L4-5 cyst and that
she removed it at that time. We agree that the last two
paragraphs of our opinion may be somewhat confusing, but
they are not inaccurate. We nevertheless amend those para-
graphs by deleting them entirely and replacing them with
this language:
“The board’s conclusion that Andrews’ opinion was ‘more
accurate and persuasive’ than that of the panel because of
his ‘familiarity with claimant’s conditions’ is likewise tied
to reasons that are not supported by substantial evidence or
reason. Andrews’ view that the L4-5 facet cyst had resolved
by 2015 is contradicted by claimant’s medical history and
the board’s findings that the cyst could be, and was, seen
in the 2015 MRI images, that the cyst was again seen in
the 2016 MRI images, and that the cyst was removed in
2016. But more importantly, and as we have explained, the
arbiter panel’s report is not ambiguous. The board was not
free to reject it. We need not, and do not, address the third
assignment of error.”
Having modified our opinion to clarify the factual
and procedural history of this workers’ compensation claim,
we reject the remaining bases of Fred Meyer’s petition for
reconsideration.
Reconsideration allowed; opinion modified and
adhered to as modified.