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Atkins v. Allied Systems8/1/2001
Argued and submitted March 2, 2001.
Affirmed.
In this workers' compensation case, claimant seeks judicial review of an order of the Workers' Compensation Board Board. The Board concluded that claimant had not suffered any permanent impairment as the result of a work-related injury to his left elbow and awarded no permanent partial disability (PPD) benefits. Claimant contends that the Board was not authorized, in the absence of other medical evidence or opinions, to disregard the medical arbiter's report in this case that contained a finding of permanent impairment. We review for errors of law and to determine whether there was substantial evidence to support the Board's determination, and we affirm.
Claimant's left arm was injured at work, and his claim for compensation was accepted by his self-insured employer. After a short hiatus from work, claimant returned to light-duty work under the supervision of his treating physician, Dr. Yarusso. Claimant did not achieve the kind of recovery that Yarusso expected, and he filed an aggravation claim and also underwent surgery by Dr. McWeeney. After surgery, claimant was evaluated by McWeeney, who released him to full-duty work. In his final report, McWeeney declared claimant medically stationary and reported that claimant "has a slight deficit of weakness that I think is accurate." Claimant's compensation claim was then closed by employer without any award for PPD. Claimant requested reconsideration and was examined by Dr. Ho, a medical arbiter, pursuant to ORS 656.268(7)(a). The arbiter found that claimant's strength was impaired in his injured arm, that the impairment was related to his discomfort and the need for additional treatment, and that claimant was "significantly limited in his ability to repetitively use the left elbow because of left lateral epicondylitis arising out of the accepted condition."
The appellate review unit issued an order on reconsideration that adopted Ho's determination and awarded claimant 13% PPD. Employer requested a hearing before the hearings division, asking for the reduction or elimination of the PPD award on the ground that the information contained in Ho's report did not support the director's award. Employer's main contention was that, if claimant was able to return to full-duty employment, an award for permanent impairment "defie logic." The administrative law judge (ALJ) affirmed the director's order. Employer appealed to the Board. The Board adopted the ALJ's findings of fact but rejected Ho's finding of impairment on the ground that it did not demonstrate any permanence in claimant's condition. It also rejected McWeeney's opinion as a basis on which to award PPD, because it found that opinion insufficiently precise to establish impairment.
On review, claimant's sole contention is that "only two people may make findings concerning a worker 's impairment--the attending physician at the time of claim closure, and a medical arbiter appointed pursuant to ORS 656.268(7)" and that the Board improperly substituted its own findings for those of the arbiter and the treating physician. His argument is premised on OAR 436-035-0007(14), which provides:
"Impairment is established by the attending physician in accordance with ORS 656.245(2)(b)(B) and OAR 436-010-0280 except where a preponderance of medical opinion establishes a different level of impairment pursuant to ORS 656.726(3)(f)(B). On reconsideration, where a medical arbiter is used, impairment is established by the medical arbiter, except where a preponderance of medical opinion establishes a different level of impairment. Where a preponderance establishes a different level of impairment, the impairment is es
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