11
Argued and submitted August 20, reversed and remanded October 7, 2020,
petition for review allowed February 18, 2021 (367 Or 559)
See later issue Oregon Reports
In the Matter of the Compensation of
Theresa M. Robinette, Claimant.
Theresa M. ROBINETTE,
Petitioner,
v.
SAIF CORPORATION
and HCW Clients - Oregon Homecare Commission,
Respondents.
Workers’ Compensation Board
1801420; A170673
475 P3d 470
Claimant seeks judicial review of an order of the Workers’ Compensation
Board upholding SAIF’s apportionment of impairment benefits for claimant’s
compensable knee injury for loss of range of motion and stability, both of which
the medical arbiter determined are caused entirely by preexisting conditions
that have not been accepted or denied, either separately or as part of a combined
condition. Held: Under Caren v. Providence Health System Oregon, 365 Or 466,
446 P3d 67 (2019), the board erred in failing to award benefits for impairment
attributable to claimant’s preexisting conditions, because the compensable work
injury is a material contributing cause of claimant’s impairment “as a whole,”
and employer has not availed itself of the statutory process for reducing claimant’s permanent partial disability award by denying a combined condition as
provided in ORS 656.268(1)(b).
Reversed and remanded.
Jodie Anne Phillips Polich argued the cause for petitioner. Also on the brief was Law Offices of Jodie Anne
Phillips Polich, P.C.
Allison B. Lesh argued the cause for respondents. On the
brief was Daniel Walker.
Before DeVore, Presiding Judge, and Egan, Chief Judge,
and DeHoog, Judge.
EGAN, C. J.
Reversed and remanded.
12 Robinette v. SAIF
EGAN, C. J.
This case presents yet another opportunity to
address issues around compensation for impairment in light
of the Supreme Court’s opinion in Caren v. Providence Health
System Oregon, 365 Or 466,
446 P3d 67 (2019). The question
presented is whether, when the medical record shows that
a particular type of new impairment is caused entirely by a
preexisting condition that has not been claimed or has not
combined with the compensable injury, the claimant must
nonetheless be paid compensation for that impairment, as
long as the claimant’s new impairment as a whole is caused
in material part by the work-related injury. We conclude
that, under the Supreme Court’s opinion in Caren, unless
the employer has issued a preclosure denial of the condition
giving rise to the particular new impairment, the employer
must pay for the “the full measure” of the claimant’s impairment. Here, the board allowed SAIF to reduce claimant’s
benefits by the impairment attributable to the preexisting
condition, although SAIF had not issued a preclosure denial
of that condition. We therefore reverse and remand the
board’s order.
In Caren, the claim involved a preexisting condition
that had combined with a work injury to cause increased
loss of lumbar range of motion. The question was whether
the employer was entitled to apportion benefits for new
range-of-motion impairment caused in part by the compensable injury and in part by a preexisting condition that had
not been accepted as compensable and that was “cognizable,” i.e., that could be treated as a preexisting condition.
See ORS 656.005(24)(a) (to qualify as a preexisting condition, a condition must have been treated or diagnosed before
the compensable injury, “[e]xcept for claims in which a preexisting condition is arthritis or an arthritic condition”). The
disputed loss of lumbar range-of-motion impairment was
caused in material part by the compensable injury and in
part by a cognizable preexisting condition that had not been
denied and was, thus, the result of a combined condition.
The employer sought to reduce the claimant’s impairment
benefits by the new impairment attributable to the cognizable preexisting condition, which had not been claimed
Cite as 307 Or App 11 (2020) 13
by the worker or denied by the employer either as a separate condition or as part of a combined condition. The court
attempted to reconcile an apparent tension between “overlapping statutes,” ORS 656.214(1)(a), (c)(A) (providing that
“[p]ermanent impairment resulting from the compensable
industrial injury” is “the loss of use or function of a body
part or system due to the compensable industrial injury”);
ORS 656.005(7)(a)(B) (setting forth major contributing cause
standard of proof when a compensable injury combines with
a qualifying “preexisting condition” to “cause or prolong” the
injured worker’s disability); and ORS 656.268(1)(b) (setting
forth procedure for the denial of combined conditions). 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
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.”
365 Or
at 468. The court reasoned that a claimant must have preclosure notice of an employer’s intention to deny a contribution to new impairment by a worker’s preexisting condition
and determined that, before benefits for new impairment
may be reduced by the portion of impairment caused by a
preexisting condition, the employer must issue a combined
condition denial.
Id. at 473. If there is no combined condition
denial, as long as the work injury is a material contributing
cause of a worker’s “impairment as a whole,” benefits must
be paid for “the full measure of impairment.”
Id. at 487.
Today, we have decided Johnson v. SAIF, 307 Or
App 1,
475 P3d 465 (2020), which was on remand from the
Supreme Court after Caren. In Johnson, the claimant had
a compensable hand injury. The disputed new impairment
was a loss of hand-grip strength, which the medical evidence
showed was caused in material part by the compensable
hand injury. But a portion of the claimant’s grip-strength
impairment was also due to a noncognizable preexisting condition—hence, the impairment was due to a combined condition. The question in Johnson, as in Caren, was whether
benefits for the new impairment could be apportioned. As in
Caren, there had been no denial of a combined condition. We
14 Robinette v. SAIF
therefore held in Johnson that, as in Caren, the worker must
be compensated for “the full measure” of impairment.
Here, claimant has received an award of a five percent whole person impairment based on an award of five
percent impairment for the surgery and five percent impairment for a chronic condition. A medical arbiter also identified specific impairment findings in claimant’s knee for loss
of range of motion and stability, both of which the medical
arbiter determined are caused entirely by preexisting conditions that have not been accepted or denied, either separately or as part of a combined condition. The preexisting
conditions were not identified until the claim was closed, and
the record does not show whether they are legally cognizable. There is no medical evidence of a combined condition.
The board declined to award impairment values for the loss
of range of motion and stability, reasoning that no impairment award could be given for impairment “entirely due to
causes that are not related to the compensable injury.”
Claimant contends on judicial review that, under
Caren, the board erred in failing to award benefits for the
impairment attributable to preexisting conditions, because
the compensable work injury is a material contributing
cause of claimant’s impairment “as a whole,” which includes
the impairment value for the surgery and the value for the
chronic condition, and employer has not availed itself of the
statutory process for reducing claimant’s permanent partial
disability award by denying a combined condition as provided in ORS 656.268(1)(b).
Employer responds that this case is distinguishable from Caren, because (1) it is not about apportionment,
as no portion of the range of motion and stability impairments are due to the compensable injury; and (2) it is not
about a combined condition, because the compensable injury
and the preexisting condition have not combined to cause
impairment. Rather, the two distinct forms of impairment
are caused solely by a noncompensable preexisting condition. Thus, employer contends, there is no basis for an award
of benefits for those impairments under ORS 656.214.
We agree with SAIF that this case is not about
apportionment, per se, which relates to a determination of
Cite as 307 Or App 11 (2020) 15
benefits for impairment when a type of impairment is caused
in part by the work injury and in part by other, nonworkrelated causes. For example, in Caren, 50 percent of the
worker’s impairment for lumbar strain was attributable to
the work and 50 percent was attributable to a preexisting
injury.
365 Or at 471. In McDermott v. SAIF,
286 Or App 406,
398 P3d 964 (2017), 40 percent of the worker’s impairment
findings to his knee was attributable to the compensable
injury, and 60 percent of the impairment findings was attributable to preexisting arthritis.
Id. at 409. In those cases, the
question was whether there could be apportionment of the
claimant’s impairment to award only those benefits attributable to the work injury. Here, no part of claimant’s range
of motion or stability impairment is attributable to the work
injury.
The case is also not about whether employer was
required to deny a combined condition. There is no contention that the values for range of motion and stability represent a combining of claimant’s work injury and her preexisting condition. The two impairments are not related to
the compensable injury.
Thus, this case is distinguishable on its facts from
Caren. The court’s opinion only explicitly addresses claims
that involve combined conditions. There is no combined
condition here, but Caren nonetheless provides some guidance. The court said in Caren that, when the cause of the
worker’s impairment as a whole is split between the work
injury and preexisting conditions, unless the employer
has issued a combined condition denial pursuant to ORS
656.268(1)(b), the worker is entitled to “the full measure of
the workers’ permanent impairment,” “if the impairment
as a whole is caused in material part by the compensable
injury.” 365 Or at 487. Thus, the court held, when there is
a combined condition, the only exception to payment of the
worker’s full impairment is if a combined condition has been
identified and denied. The court’s reasoning in Caren was
that a claimant is entitled to some notice if the employer
contends that a portion of the worker’s impairment is not
compensable.
Id. at 484 (“In general, the workers’ compensation laws require specific written notice whenever an
16 Robinette v. SAIF
employer intends to deny compensation. ORS 656.262(9).”).
The court said:
“It is not plausible that the legislature intended employers
to deny compensation to which a worker otherwise would
be entitled for the worker’s permanent impairment without
providing a notice that affords the worker a meaningful
opportunity to challenge that denial of compensation.”
Id. at 486. The court’s reasoning is applicable even in the
context of claims that do not involve some combining of the
work injury and the preexisting condition. If the employer
intends to assert that a portion of the claimant’s impairment is not related to the work injury, the employer is
required to issue a preclosure denial of the condition giving
rise to the impairment. Only then is the employer entitled
to a reduction in impairment benefits for the portion of the
impairment that is attributable to a cognizable preexisting
condition.
Here, claimant’s impairment “as a whole” includes
her whole-person impairment, of which the work injury is a
material contributing cause, as well as her impairment due
to loss of range of motion and stability. Employer has not
denied the condition to which claimant’s range-of-motion
and stability impairments are attributable. The board
therefore erred in concluding that claimant was not entitled to be compensated for her range-of-motion and stability
impairment.
Reversed and remanded.
