453 P.3d 603
Or. Ct. App.2019Background
- Claimant (Wiggins) suffered an accepted right-knee injury (sprain and patellofemoral chondromalacia).
- SAIF sent a check-the-box form to claimant’s treating surgeon asking about repetitive-use limitations; options: “No limitation,” “Some limitation,” and “Significant limitation (more than 2/3 of the time).” Dr. Greenleaf checked “Some limitation,” and SAIF closed the claim without awarding a chronic-condition impairment value under OAR 436-035-0019.
- After Spurger, WCD issued an Industry Notice defining “significantly limited” to mean limited to frequent repetitive use — i.e., the worker can use the body part for up to two-thirds of the time (so being restricted one-third or more merits the award).
- On reconsideration, claimant’s counsel provided the Industry Notice to Dr. Greenleaf; he clarified that claimant could not tolerate certain activities for more than two-thirds of an eight-hour day. The ARU then awarded the chronic-condition impairment.
- Claimant sought penalties and attorney fees, arguing SAIF’s closure was unreasonable because the form mis-stated the WCD standard; the ALJ and the Workers’ Compensation Board denied penalties, finding SAIF’s form referred to the WCD interpretation.
- The Court of Appeals reversed: the “Significant limitation (more than 2/3 of the time)” wording on SAIF’s form reasonably reads to mean the worker is limited more than two-thirds of the time, which is the opposite of WCD’s defined standard, so the board erred and the case was remanded for reconsideration of penalties and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SAIF’s form correctly articulated WCD’s “significantly limited” standard for a chronic-condition impairment under OAR 436-035-0019 | Wiggins: the form misstates the WCD standard; its phrasing requires limitation >2/3 of the time, not the WCD meaning (useable up to 2/3) | SAIF: the form sufficiently communicated the WCD standard; the board’s finding is supported by the record | Reversed: the form’s wording reasonably reads to require limitation for more than two-thirds of the time and therefore does not reflect WCD’s definition (which requires limitation of one-third or more); board erred |
| Whether the board properly denied penalties and attorney fees based on SAIF’s closure | Wiggins: denial was unreasonable because SAIF relied on a form that mischaracterized the standard, entitling him to penalties/fees | SAIF: board’s denial of penalties is supported by substantial evidence and SAIF’s actions were reasonable | Remanded: because the board erred about the form’s accuracy, the board must reconsider claimant’s penalty/fee claims under the correct interpretation |
Key Cases Cited
- Broeke v. SAIF, 300 Or App 91 (2019) (explains WCD Industry Notice and holds WCD’s interpretation that "significant" = limited to frequent use up to two-thirds of time)
- Spurger v. SAIF, 266 Or App 183 (2014) (identified lack of administrative definition for “significantly limited” and returned the issue for clarification)
- SAIF Corp. v. Eller, 189 Or App 113 (2003) (agency interpretations of WCD rules are entitled to deference if plausible)
- Garcia v. Boise Cascade Corp., 309 Or 292 (1990) (sets out the substantial-evidence standard for reviewing agency factfindings)