Workers’ Compensation Board confirms permanent impairment is awarded based on accepted conditions or their direct medical sequelae; distinguishes recent Court of Appeals case.

White David_160x222 (2)The Workers’ Compensation Board recently ruled that permanent impairment awarded based on the accepted conditions and their direct medical sequelae. See William Snyder, 68 Van Natta 199 (2016). Although Board’s ruling is nothing new, Snyder is significant given a footnote in the recent Court of Appeals case Magana-Marquez v. SAIF, 276 Or App 32 (2016).

In Magana-Marquez, claimant was seeking a permanent disability award for reduced range of motion and sensory loss in her low back; findings she acknowledged were unrelated her workplace injury. The Court ultimately held claimant was not entitled to a permanent impairment award, because there was no causal connection between her compensable injury and claimed impairment. 276 Or App at 37.

The Court’s opinion included a footnote that stated the proper focus in determining entitlement to a permanent disability award is whether there is permanent impairment resulting from the compensable injury. However, it also noted the distinction between a compensable injury and accepted condition had no bearing on their decision. Magana-Marquez, 276 Or App at 34 n 2 (citing Brown v. SAIF 262 Or App 640 (2014)).

In Snyder, claimant appealed an Order on Reconsideration which did not award him permanent impairment for his accepted conditions. The Order was based on a medical arbiter report that found reduced range of motion in claimant’s cervical and thoracic spines. However, the medical arbiter concluded 0% of claimant’s permanent impairment was due to the accepted conditions. Claimant argued that under Brown he was entitled to a permanent impairment award due to his compensable injury. Citing an earlier Board ruling, Stuart C. Yekel, 67 Van Natta 1279 (2015), the ALJ affirmed the Order on Reconsideration. Sitting en banc, the Board affirmed. 68 Van Natta at 199.

The Board explained the statutory framework, administrative rules, and “‘post-Brown’ case law” support awarding permanent impairment based on the accepted conditions and their direct medical sequelae. In a footnote of its own, the Board acknowledged the Court’s comments in Magana-Marquez. However, it concluded the Court’s comments were dicta because the issue in that case was different than the one presented to the Board. Further, the distinction between a compensable injury and accepted condition had no bearing on the Court’s ruling. Pending the Oregon Supreme Court’s ruling in Brown, the Board decided the “most administratively judicious approach” was to stick to to its prior rulings. Snyder, 68 Van Natta 200 n 1.

For the time being, permanent impairment awards should be based on accepted conditions and their direct medical sequelae. However, we should expect future decisions addressing permanent impairment given the differences between the Court’s comments in Magana-Marquez and the Boards ruling in Snyder.