Worker Gets Full Compensation for Impairment Partially Caused by Compensable Injury

Monday, April 25, 2022 | 0

The Oregon Supreme Court ruled that a worker is entitled to compensation for the full measure of impairment where it is caused in material part, but not solely, by a compensable injury.

Marisela Johnson worked for the Terrace Corp. The company had workers’ compensation insurance coverage with SAIF Corp.

Johnson injured her hand when it got caught in an elevator door at work. SAIF accepted liability for contusions and abrasions.

After Johnson’s doctor reported that the hand injuries had resolved, SAIF closed her comp claim without any payment of permanent disability benefit.

Meanwhile, Johnson sought medical treatment for her arm, shoulder and back. She asserted that she had injured them while trying to pull her hand back from the elevator door.

SAIF accepted liability for a sprain of Johnson’s left shoulder and trapezius, but it denied liability for a rotator cuff tear, elbow sprain and forearm sprain.

Johnson requested a hearing on the compensability of the conditions for which SAIF had denied liability.

While her hearing request was pending, Johnson filed a request for reconsideration of the closure of her claim for the hand injury.

A medical arbiter examined Johnson and reported that she had a limited range of motion attributable to the hand injury. He also identified a loss of grip strength. The arbiter attributed 50% of the loss of Johnson’s grip strength to the hand injury and 50% to the shoulder injury that SAIF had not accepted as compensable.

Based on the arbiter’s report, the Oregon Workers' Compensation Division’s Appellate Review Unit issued an order on reconsideration awarding Johnson benefits for a 7% whole person impairment.

Johnson challenged the ARU’s order, contending that there should not have been apportionment for her loss of grip strength. She insisted that the full amount of her loss in grip strength should be compensable, since her hand injury was at least 50% of the cause of her loss in grip strength.

An administrative law judge agreed with Johnson, but the Workers’ Compensation Board ruled that the benefits for her hand injury could not include the portion of impairment attributable to the denied claim for injuries to the left shoulder.

The Court of Appeals affirmed the board’s decision.

Johnson then sought review by the Oregon Supreme Court, which remanded the case for reconsideration in light of its opinion in Caren v. Providence Health System Oregon.

In that case, the Supreme Court ruled that if a work injury is a material contributing cause of the worker's new impairment, but a portion of the new impairment is caused by a combining of the injury and a cognizable preexisting condition, benefits may be reduced only if the employer has identified the combined condition and denied it before claim closure.

On remand, the Court of Appeals reversed its earlier decision and ruled that when a worker's impairment is due to a combination of the compensable injury and a preexisting condition, she is entitled to be fully compensated for new impairment if it is due in material part to the compensable injury, except where an employer has made use of the statutory process for reducing liability after issuing a combined condition denial.

Because apportionment among different injuries can occur only in a combined condition claim, and because Johnson's impairment was not the result of a combined condition, the lower court concluded that she was entitled to the full measure of her impairment, without regard to SAIF's previous denial of the rotator cuff injury.

SAIF appealed.

The Supreme Court said that the state’s workers' compensation statutes “provide for a specific process that must be adhered to following a workplace injury.”

When an accepted, compensable injury becomes medically stationary, and proper notice has been issued to the worker, the court said the insurer calculates the amount of disability benefits due for the worker’s impairment.

"Impairment" is statutorily defined as "the loss of use or function of a body part or system due to the compensable industrial injury." Combined with the statutory definition of a permanent partial disability as a permanent impairment resulting from the compensable industrial injury or occupational disease, the court said an award for permanent partial disability is based on permanent loss of use or function of a body part or system resulting from the compensable industrial injury.

The court said its case law has established that when an accepted, compensable injury is a material contributing cause of a worker’s impairment, she is entitled to the full measure of compensation and that apportionment may be used by an insurer to reduce benefits for impairment only where the Legislature has identified an exception to, or limitation on, the material contributing cause standard.

“Here, the Workers' Compensation Board upheld SAIF's determination that claimant was not entitled to an award of permanent partial disability for any of her impairment that was caused by the denied conditions,” the court observed. “That approach effectively reduced claimant's award in the same way that apportionment would reduce her award in a combined condition case.”

The court said there was no combined condition presented in this case because there was no evidence in the record to suggest that the denied left rotator cuff tear was previously diagnosed or treated prior to the workplace injury. But the impairment at issue is not the damage to the rotator cuff tear, the court said; the impairment at issue was the loss of grip strength in Johnson’s left hand.

“The question is whether claimant is entitled to the full measure of that impairment where the accepted conditions — the injuries to claimant's left fingers and sprains to her left shoulder area — are a material contributing cause of the impairment as a whole,” the court said. “As we understand the statues and the record in this case, the answer is yes.”

The court said the law remains that an employer's liability for impairment can be limited because of a legally cognizable preexisting condition that combines with a compensable condition.

“Outside of those circumstances, however, an injured worker is entitled to compensation for the full measure of their impairment that is caused in material part by the compensable injury.”

To read the court’s decision in Johnson v. SAIF Corp., No. SC S068208, 04/21/2022, published, click here.