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Jackson v. Tuality Community Hospital12/28/1994
COURT OF APPEALS OF OREGON
88-13477, CA A80451
1994.OR.40780 ; 888 P.2d 35; 132 Or.App. 182
Filed: December 28, 1994.
IN THE MATTER OF THE COMPENSATION OF JANET K. JACKSON, CLAIMANT. JANET K. JACKSON, PETITIONER,
v.
TUALITY COMMUNITY HOSPITAL AND SAIF CORPORATION, RESPONDENTS
Helen T. Dziuba, Portland, argued the cause and filed the brief for petitioner
Steven Cotton, Sp . Asst. Atty. Gen., argued the cause for respondents. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen
Deits, Judge
Claimant seeks reversal of a Workers' Compensation Board order reducing her unscheduled permanent disability award resulting from a low back injury , and refusing to award her additional scheduled permanent disability. We affirm.
Claimant first injured her back in 1983, and then reinjured it in 1984. In May, 1985, her claim was closed, and she was awarded 20 percent unscheduled permanent partial disability and 10 percent scheduled permanent partial disability to the left foot (lower leg). In 1989, claimant experienced increasing low back and leg pain and, consequently, in February 1990, underwent surgery. On October 9, 1990, a Determination Order awarded an additional 4 percent unscheduled permanent partial disability, for a total of 24 percent. In April, 1991, claimant requested reconsideration, disputing the impairment used in rating her disability.
Thereafter, the Department of Insurance and Finance (DIF) scheduled a medical arbitration pursuant to ORS 656.268(7), but claimant refused to attend that examination. The medical arbiter did not issue any findings. On August 23, 1991, DIF issued an order on reconsideration, increasing claimant's total unscheduled award to 29 percent. Claimant then requested a hearing. At the hearing, she offered two reports from her treating physicians that were prepared after the order on reconsideration. The referee ruled that those exhibits were inadmissible under ORS 656.268(7). However, the referee agreed with claimant that DIF's temporary rules defining standards for rating permanent disabilities were invalid. Without applying the temporary rules, the referee fixed claimant's unscheduled permanent partial disability at 36 percent, but refused to award additional scheduled disability for claimant's left leg.
On claimant's appeal to the Board, it reversed the referee's ruling that the temporary rules were invalid and affirmed the referee's exclusion of the treating physician's reports. The Board applied the temporary rules insofar as they had been incorporated by subsequently promulgated
permanent rules, reduced claimant's unscheduled permanent partial disability to 29 percent and agreed with the referee that claimant should not be awarded additional scheduled disability.
On appeal, claimant first assigns error to the Board's Conclusion that under ORS 656.268(7), the medical exhibits that were prepared after the order on reconsideration, that claimant sought to introduce at the hearing, must be excluded. ORS 656.268(7) establishes the process to be followed when a claimant requests reconsideration of a determination order disputing the impairment used in rating a disability. The claimant must advise the director of any objections to the impairment decision, and the director is required to appoint a medical arbiter. The arbiter or panel of arbiters may examine the worker and perform such te
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