287 P.3d 1220
Or. Ct. App.2012Background
- Claimant suffered a March 2007 compensable knee injury with accepted conditions: right knee strain and medial meniscus tear.
- Two knee surgeries (May 2007, January 2008) left claimant with pain and limited function; SAIF closed claim June 2008 with 2% PPD.
- ARU postponed or considered reconsideration; ARU relied on May 12 IME and halted after deeming claimant medically stationary
- Zenoniani later reported June 24, 2008 that claimant had functional deficits and should not work, but this postdated closure and ARU reconsideration.
- The ARU cancelled the August 14, 2008 medical arbiter exam, relying on the record at closure to determine impairment; Tatsumi then conducted the exam anyway.
- ALJ admitted Tatsumi’s report; board later relied on Tatsumi to increase impairment to 11% PPD, and SAIF sought judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ARU cancellation defeated admissibility/weight of Tatsumi report | SAIF: cancellation means Tatsumi report non-viable; board should defer to ARU rule interpretation | Jackson/board: no rule requires cancellation; impairment must follow arbiter findings unless exceptions apply | Cancellation not binding; Tatsumi report admissible and relied upon |
| Whether board erred in relying on Tatsumi's findings to rate impairment | SAIF: report invalid due to cancellation; impairment should rely on prior records | Claimant’s impairment determined by arbiter findings unless preponderance supports attending physician | Board properly relied on Tatsumi unless compelling reasons to contest existed |
| Whether claimant was medically stationary on August 14, 2008 | SAIF: August 14 not stationary due to ongoing treatment and MRI; Tatsumi not reliable | Board correctly found stationary date consistent with record; ongoing therapy not dispositive | Yes, claimant was medically stationary on August 14, 2008 |
| Whether the board properly weighed the ARU procedure and statutory rules | SAIF: ARU’s interpretation should be deference to director’s rules per Booth | Claimant: no rule exists; Deference not warranted where no rule to interpret | Deference not applicable; board correctly applied statutes and rules |
Key Cases Cited
- Hicks v. SAIF, 194 Or App 655 (2004) (arbiter findings govern impairment unless exceptions apply)
- O’Connor v. Liberty Northwest Ins. Corp., 232 Or App 419 (2009) (on reconsideration impairment must be based on medical arbiter’s findings)
- Booth v. Tektronix, 312 Or 463 (1991) (board may adopt policy; deference to agency interpretations not always required)
- Clarke v. SAIF, 120 Or App 11 (1993) (medical treatment for functional improvement not dispositive of stationary status)
- Don’t Waste Oregon Com. v. Energy Facility Siting, 320 Or 132 (1994) (plausible interpretation of agency rule not applicable where no rule exists)
- Maarefi v. SAIF, 69 Or App 527 (1984) (medical care may continue after stationary status)