May 27, 2021
by Elyse Lopez

Unreasonable Claim Closure in Oregon: Why Chronic Condition Impairment Matters

Elyse LopezThe time has come to close your claim. Your claim closure checklist likely has a section for “chronic condition” impairment but how can you be confident you’re correctly addressing the issue with the attending physician or closing examiner?

Pursuant to OAR 436-035-0019, a worker is entitled to a chronic condition impairment value if a preponderance of medical opinion establishes that, due to a chronic and permanent medical condition, the worker is “significantly limited” in the repetitive use of the body part at issue. The Workers’ Compensation Division’s (WCD) December 2014 Industry Notice has interpreted “significant limitation” to mean the ability to repetitively use the body part for up to two-thirds of a period of time.

So why does this language matter? First, failure to use the correct language could result in the Appellate Review Unit (ARU) rescinding your claim closure. But second, the Board has been issuing penalties related to unreasonable claim closures where the proper language outlining “significant limitation” was not used.

In the matter of Keith Wiggins, a chronic condition impairment value was not awarded based on the attending physician’s response as to whether claimant had a “significant limitation” in the repetitive use of the right leg. See Keith J. Wiggins, 73 Van Natta 352. The letter sent to the doctor described significant limitation as “more than 2/3 of the time.” This, the Board said, could not be reasonably interpreted to communicate the correct standard; therefore, it was unreasonable for the carrier to rely on the attending physician’s opinion in closing the claim without a chronic condition impairment value. After reviewing ORS 656.268(5)(f), the Board awarded a penalty for unreasonable claim closure due to the use of an incorrect standard in describing “significant limitation.”

In another recent case, Brit L. Broeke, 73 Van Natta 338, the Board came to a similar conclusion – again relying on the definition of chronic condition impairment under OAR 436-035-0019 and the WCD’s December 2014 Industry Notice. Claimant’s attending physician provided an opinion for closure which stated claimant could only use his ankles and feet repetitively for one-quarter of a period of time. The “significant limitation” language provided to claimant’s attending physician was identical to the language used in the Wiggins case. As a result, the Board concluded that the opinion of claimant’s attending physician established a significant limitation in the repetitive use of claimant’s feet and ankles; he was awarded a chronic condition impairment value. Again, because the facts were almost identical to Wiggins, the Board assessed a penalty under ORS 656.268(5)(f), finding no basis in the record to support a legitimate doubt as to the carrier’s liability for the chronic condition impairment value.

These cases are a reminder to make sure the correct definition of “significant limitation” – as defined in the WCD’s December 2014 Industry Notice – is being used when obtaining closing opinions from attending physicians and closing examiners. Otherwise, there can be exposure for penalties related to an unreasonable claim closure – in addition to possibly having the closure set aside during reconsideration.

If you have any questions about how to address this issue, please feel free to contact me at 503-412-3111 or .

Posted by Elyse Lopez.