Court of Appeals Upholds Right to Apportion Permanent Disability Awards at Closure
In a new PPD case, Schleiss v. SAIF Corp., the Oregon Court of Appeals upheld an insurer’s right to apportion permanent disability awards. Claimant was injured in April 2008. In 2009, the claim was closed with no impairment. Claimant appealed and requested a medical arbiter evaluation. The arbiter found range of motion limitations, 33% of which were attributable to the compensable condition. The arbiter attributed the remainder to preexisting conditions and a long history of smoking. Relying on the arbiter, the OOR apportioned 33% of the range of motion limitations to the accepted injury. On appeal, the ALJ and Board affirmed the OOR. Claimant appealed to the Oregon Court of Appeals arguing apportionment of disability awards exceeded the scope of the statutory authority. Specifically, claimant argued the administrative rule allowing for apportionment was not supported by Oregon statutes. The Court disagreed. It held ORS 656.214(1)(a) and ORS 656.726(4)(f)(A) specifically contemplate benefits will only be awarded for impairment “due to” the compensable condition. Therefore, apportionment is proper where some impairment is attributable to a condition other than the accepted condition.