Machuca-Ramirez v. Zephyr Engineering, Inc.
Machuca-Ramirez v. Zephyr Engineering, Inc.
Opinion of the Court
Claimant seeks review of an order of the Workers’ Compensation Board (board) reversing an administrative law judge’s (AU) award of 28 percent permanent partial disability (PPD). We affirm.
The relevant facts are uncontested. Claimant injured his back at work, and employer accepted a claim for back strain. Based on the opinion of claimant’s treating physician, Dr. Tsang, and an independent medical examination conducted by Drs. Woodward and Williams, employer issued a notice of closure that included an award of 28 percent unscheduled PPD. Claimant requested reconsideration.
The Appellate Review Unit (ARU) appointed a medical arbiter, Dr. Vessely, to examine claimant. Vessely concluded that he could not make a valid examination of claimant because of claimant’s “total noncooperation” and “symptomatic magnification.” Vessely could not identify any residual functional capacity limitations due to the compensable injury. Based on Vessely^ report, the ARU issued an order on reconsideration that reduced claimant’s unscheduled PPD to zero.
Claimant requested a hearing. He argued that the medical arbiter’s opinion should be rejected in favor of the opinion of his own physician and those of Woodward and Williams. Employer argued that the medical arbiter’s opinion should govern. The AU reinstated the 28 percent PPD, finding that the medical arbiter’s opinion was less persuasive than the opinions of the other physicians.
Employer requested board review, asking for reinstatement of the order on reconsideration. Claimant objected, arguing that employer is barred from arguing for an award that is lower than the 28 percent PPD that it allowed in its notice of closure. The board rejected that argument. According to the board, employer is not challenging its own notice of closure; rather, it is addressing “the propriety of the change in the Order on Reconsideration made in the claimant’s award (i.e., reduction to zero).” (Emphasis in original.) Accordingly, the board concluded, employer is not barred
Claimant now seeks review. His only contention is that the board erred in concluding that employer is not barred from seeking review of the AU’s order reinstating the 28 percent award of unscheduled PPD. Relying principally on our decision in Duncan v. Liberty Northwest Ins. Corp., 133 Or App 605, 894 P2d 477 (1995), claimant argues that the award in a notice of closure “acts as the floor and the employer cannot seek a reduction of claimant’s disability award below that amount.” Therefore, claimant concludes, employer was precluded from seeking review of the ALJ’s order, which did no more than restore the award in the notice of closure.
Employer contends that Duncan is distinguishable because that case turned on the consequences of an earlier failure to seek review on a subsequent attempt to raise an issue. Employer notes that no such failure occurred in this case.
ORS 656.268 (1997)
Duncan is not to the contrary. In that case, a claim was closed by a determination order awarding 11 percent PPD for a right wrist injury. The claimant requested reconsideration of the determination order, alleging that she was entitled to an increased award of disability for the right wrist. Although it could have, the employer did not request reconsideration of the determination order. The order on reconsideration increased the disability award to 33 percent. At that point, the employer requested a hearing seeking reduction of the disability award to zero. The board held, and we agreed, that the employer could not do that:
“Claimant asserts, and we agree, that employer is barred from challenging the determination order award at a hearing because it did not seek reconsideration. * * * ORS 656.268(5) forecloses the objection if no request for reconsideration was made. Thus, the determination order becomes the instrument that defines the maximum or minimum awards when a party fails to raise its objections through a request for reconsideration. However, if the reconsideration order changes the determination order, the propriety of that change can be raised by either party at a hearing. In this case, the determination order served as a floor, and employer could not seek reduction of the temporary or permanent disability benefits below that level because it did not request reconsideration on those issues.”
Duncan, 133 Or App at 610-11. Thus, in Duncan, the only reason that the award in the determination order served as a “floor” having preclusive effect was that the employer failed to request reconsideration of the award itself.
There was no such failure in this case. The order on reconsideration changed the disability award from 28 percent to zero. Claimant contested the change, and employer
Claimant insists that employer improperly is being permitted to challenge its own disability award. We disagree. As the board correctly pointed out, when the order on reconsideration makes a change in the award, the proper focus is not on employer’s initial award but on “the propriety of the change the Order on Reconsideration made in the claimant’s award.” (Emphasis in original.) See Duncan, 133 Or App at 611. That makes sense, as the order on reconsideration is predicated on additional — and more recent — information not previously available to the parties, i.e., the medical arbiter’s report. The relevant statutes give no indication that an employer is not entitled to defend a department decision made on the basis of that additional information. We therefore conclude that the board was correct in rejecting claimant’s contention that employer may not challenge the ALJ’s order.
Affirmed.
The statute has since been amended many times, but the amendments do not apply to this case. All citations to the statute, therefore, are to the 1997 version.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.