453 P.3d 597
Or. Ct. App.2019Background
- Claimant Brit Broeke developed compensable bilateral plantar fasciitis from long-term warehouse work; SAIF insured the claim.
- SAIF issued a Notice of Closure (Oct 21, 2015) awarding 4% whole-person impairment and some work-disability; Dr. Walters treated Broeke and gave differing statements about standing/walking limits (one statement limiting standing to 25% of time; later stating Broeke could be on his feet >2 hours in an 8-hour day).
- SAIF’s Appellate Review Unit (ARU) affirmed the closure awards but denied (1) a 15% “of the leg” impairment under OAR 436-035-0230(14) (for inability to be on feet >2 hours/day) and (2) a 5% chronic-condition impairment under OAR 436-035-0019(1)(a) (for being ‘‘significantly limited’’ in repetitive lower-leg use).
- At hearing, ALJ found Walters’s opinions equivocal and noted Walters checked “some limitation” (not “significant limitation”) on a SAIF questionnaire that defined “significant limitation” as "more than 2/3 of the time." ALJ declined the 15% and 5% awards and rejected penalty/fee claims; the WCB adopted the ALJ order.
- Broeke petitioned for judicial review. He argued the ARU/WCB misapplied the rules (including misunderstanding the 15%-of-leg rule), that SAIF’s questionnaire was misleading relative to WCD’s interpretation of “significant limitation,” and that penalties/fees should follow.
- The Court of Appeals affirmed denial of the 15%-of-leg award (sustained by Walters’s later opinion that Broeke could be on his feet >2 hours) but reversed and remanded on the 5% chronic-condition issue and on penalties/fees because the board failed to explain why Broeke’s standing/walking limitations did not meet WCD’s interpretation of “significant limitation.” The court also noted the SAIF form was misleading and left penalties/fees for the board to decide on remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 15% of the leg under OAR 436-035-0230(14) (cannot be on feet >2 hrs/8-hr day) | Walters’s October 2015 restriction (on feet 25% of time) shows Broeke cannot be on feet >2 hours, so 15% leg award required | Walters later stated Broeke could be on his feet >2 hours; evidence supports ARU/ALJ/WCB rejection | Affirmed: substantial evidence supports WCB’s finding Broeke could be on feet >2 hours and WCB gave adequate reasons |
| 5% chronic-condition under OAR 436-035-0019(1)(a) ("significantly limited" in repetitive lower-leg use) | Broeke’s difficulties with standing/walking meet WCD’s standard (significant = limited to ≤2/3 of time); SAIF form misdefined “significant limitation,” so Walters’s check of “some limitation” is unreliable | ALJ/WCB relied on Walters marking “some limitation” and considered evidence equivocal; no significant limitation shown | Reversed and remanded: WCB failed to explain why Broeke’s limitations do not meet WCD’s plausible interpretation of “significantly limited”; must reconsider, account for misleading questionnaire |
| Penalties and fees (including for misleading questionnaire) | Entitled to penalties/fees under ORS provisions if chronic-condition award denied or because SAIF’s questionnaire was unreasonable/misleading | No basis while chronic-condition award denied; questionnaire did not warrant penalty then | Remanded: Court found SAIF’s form misleading but left statutory penalty/fee determinations to the WCB on reconsideration |
Key Cases Cited
- Garcia v. Boise Cascade Corp., 309 Or 292 (describes substantial-evidence standard)
- Spurger v. SAIF Corp., 266 Or App 183 (agency must define/justify meaning of “significantly limited” under OAR 436-035-0019)
- Spurger v. SAIF Corp., 292 Or App 227 (remand where board’s explanation remained insufficient re: significant limitation)
- SAIF Corp. v. Eller, 189 Or App 113 (agency’s plausible interpretation of its rule entitled to deference)