Johnson v. SAIF

                                        1

  Submitted on remand from the Oregon Supreme Court November 26, 2019,
     reversed and remanded October 7, 2020, petition for review allowed
                      February 19, 2021 (

)
                      See later issue Oregon Reports


               In the Matter of the Compensation of
                   Marisela Johnson, Claimant.
                       Marisela JOHNSON,
                            Petitioner,
                                 v.
                      SAIF CORPORATION
                   and The Terrace Corporation,
                           Respondents.
                   Workers’ Compensation Board
                    1202168, 1201864; A160491
                                  

     On remand from the Supreme Court, the Court of Appeals is asked to reconsider its opinion in Johnson v. SAIF, 

, 

 (2018), in light
of Caren v. Providence Health System Oregon, 

, 

 (2019). In
its original opinion, the Court of Appeals affirmed the board’s order determining
that claimant’s benefits for impairment could be reduced by the portion of claimant’s impairment attributable to a denied preexisting shoulder condition. Caren
holds that when a worker’s impairment is caused by a combination of a work-related injury and a preexisting condition and the work-related injury is a material contributing cause of the total impairment, the worker is entitled to be compensated for the “full measure” of impairment, unless the employer has issued
a preclosure denial of the worker’s combined condition that has contributed to
the worker’s total impairment. Held: Although SAIF denied claimant’s shoulder
condition, SAIF has not denied the combined condition that was identified by the
medical arbiter and that resulted in claimant’s range-of-motion impairment in
her hand. Accordingly, under Caren, claimant is entitled to be awarded the “full
measure” of impairment.
    Reversed and remanded.

  On remand from the Oregon Supreme Court, Johnson v.
SAIF, 

, 

 (2019).
  Donald M. Hooton filed the briefs for petitioner.
  Julie Masters filed the brief for respondents.
  Before Ortega, Presiding Judge, and Egan, Chief Judge,
and Lagesen, Judge.
  EGAN, C. J.
  Reversed and remanded.
2                                            Johnson v. SAIF

        EGAN, C. J.
         This case is on remand from the Supreme Court
for reconsideration in light of the court’s opinion in Caren v.
Providence Health System Oregon, 

, 

(2019). Caren involved a workers’ compensation claim that
the employer accepted for “lumbar strain.” Medical arbiters
ultimately opined that 70 percent of the claimant’s range-of-motion impairment was due to preexisting arthritis, and
the claimant’s permanent disability award was apportioned,
or reduced, accordingly. The claimant had not requested
acceptance of a combined condition, and the employer had
not accepted or denied a combined condition.
         The Workers’ Compensation Board upheld the
apportionment, rejecting the claimant’s contention that
she was entitled to an award for her full range-of-motion
impairment. In a per curiam opinion, Caren v. Providence
Health System Oregon, 

, 

 (2018),
we affirmed the board’s order upholding an apportionment
of benefits to reduce the claimant’s benefits for impairment
by the impairment attributable to the preexisting condition. We cited our opinion in McDermott v. SAIF, 

, 

 (2017), vacated and remanded,

, 

 (2019), in which we had held that
a worker’s benefits for impairment at the time of claim closure could be reduced by the percentage of impairment
“due to” the worker’s legally cognizable preexisting condition, unless the preexisting condition had been claimed
by the worker, accepted by the employer as part of a combined condition, and remained compensable at the time of
closure.
         The Supreme Court allowed review in Caren to overrule our analysis in McDermott. Under the Supreme Court’s
opinion in Caren, if the work injury is a material contributing cause of the worker’s new impairment but a portion of
the new impairment is caused by a combining of the work
injury and a cognizable preexisting condition, then benefits
for the new impairment may be reduced by the new impairment caused by the combined condition only if the employer
has identified the combined condition and denied it before
claim closure pursuant to the procedure described in ORS
Cite as 

 (2020)                                                       3

656.268(1)(b). 

. It is not the claimant’s burden
to first seek acceptance of a combined condition.1 

         In this case, claimant had an accepted claim for an
injury to her left hand and a denied claim for an injury to
her left rotator cuff. In evaluating claimant’s impairment
from the accepted hand claim only, the medical arbiter
identified limited range of motion attributable to the hand
injury. He also identified a loss of grip strength, which he
attributed to a combined condition attributable 50 percent
to the hand injury and 50 percent to the shoulder conditions.
The Appellate Review Unit (ARU) issued an order on reconsideration awarding claimant benefits for seven percent
whole-person impairment for impairment to the left hand.2
The impairment value for loss of grip strength was apportioned to the hand claim at 50 percent. The board upheld the
apportionment, and we affirmed the board’s order, rejecting
claimant’s contention that there should be no reduction in
the impairment benefits for claimant’s hand injury for a loss
of grip strength attributable to claimant’s denied shoulder
condition. Johnson v. SAIF, 

, 

(2018). We first cited our opinion in McDermott, and reasoned that McDermott resolved most of claimant’s statutory
construction contentions. 

.
         We then considered and addressed claimant’s contention that apportionment is precluded under the Supreme
Court’s opinion in Schleiss v. SAIF, 

, 

       We note that the Supreme Court’s opinion in Caren implicitly overrules our
opinion in Croman Corp. v. Serrano, 

, 

 (1999),
in which we held that the preclosure denial of a combined condition claim applies
only to an accepted combined condition claim.
     2
       We note that the subsequently accepted claims for shoulder and left trapezius muscle sprain were not before the ARU. Impairment attributable to those
conditions would be determined in a subsequent closure related to those conditions. See Yi v. City of Portland, 

, 138, 

 (2017). (path
for review of disability for a condition accepted after claim closure is not through
modification of the notice of closure but through reconsideration of a subsequent
notice of closure). ORS 656.262(7)(c) provides, in part:
          “When an insurer or self-insured employer determines that the claim
     qualifies for claim closure, the insurer or self-insured employer shall issue at
     claim closure an updated notice of acceptance that specifies which conditions
     are compensable. … Any objection to the update notice or appeal of denied
     conditions shall not delay claim closure pursuant to ORS 656.268. If a condition is found compensable after claim closure, the insurer or self-insured
     employer shall reopen the claim for processing regarding that condition.”
4                                          Johnson v. SAIF

244 (2013), because claimant’s preexisting shoulder condition was not a “legally cognizable” preexisting condition
for which apportionment is available. Although we agreed
with the claimant that his condition was not “legally cognizable” as a preexisting condition, we nonetheless upheld
the apportionment of impairment benefits. Johnson, 

. That is because the shoulder claim had been
denied. See ORS 656.262(2) (“The compensation due under
this chapter shall be paid periodically, … except where
the right to compensation is denied by the insurer or self-insured employer.”); ORS 656.268(15) (“Conditions that are
direct medical sequelae to the original accepted condition
shall be included in rating permanent disability of the claim
unless they have been specifically denied.”). We concluded
that a worker is not entitled to benefits for impairment due
to a condition that has been denied and that benefits for
impairment could be reduced by that the portion of claimant’s impairment attributable to the denied shoulder claim.
Johnson, 

.

         The Supreme Court now asks us to reconsider our
opinion in light of its opinion in Caren. When a worker’s
impairment is caused by a combination of a work-related
injury and a cognizable preexisting condition, and the work-related injury is a material contributing cause of the total
impairment, Caren holds that the worker is entitled to be
compensated for the “full measure” of impairment, unless
the employer has issued a preclosure denial of the worker’s
combined condition that has contributed to the worker’s
total impairment. 

.

         Caren did not explicitly address the issue presented
here—whether a worker should be compensated for the “full
measure” of impairment caused in material part by a work
injury in combination with a noncognizable preexisting condition that the employer has previously denied outright. But
there is discussion in Caren that leads us to conclude that
claimant is entitled to the “full measure” of impairment. The
court held in Caren that, when a worker’s impairment is due
to a combining of the compensable injury and a preexisting
condition, “the legislature intended that injured workers
would be fully compensated for new impairment if it is due
Cite as 

 (2020)                                5

in material part to the compensable injury, except where an
employer has made use of the statutory process for reducing liability after issuing a combined condition denial.” 

. Although SAIF denied claimant’s shoulder condition, SAIF has not denied the combined condition that was
identified by the medical arbiter and that resulted in claimant’s range-of-motion impairment in her hand. Accordingly,
under Caren, claimant is entitled to be awarded the “full
measure” of impairment.
        Reversed and remanded.