55 Van Natta 4324 (2003). NORMAN T. SMITH, Claimant.

CourtOregon
Oregon Workers Compensation 2003. 55 Van Natta 4324 (2003). NORMAN T. SMITH, Claimant 4324In the Matter of the Compensation of NORMAN T. SMITH, ClaimantWCB Case No. 02-09488ORDER ON REVIEWHill and Wren LLP, Claimant Attorneys Reinisch Mackenzie et al, Defense AttorneysReviewing Panel: Members Biehl, Langer, and Bock. Member Biehl concurs in part and dissents in part. Claimant requests review of Administrative Law Judge (ALJ) Podnar's order that reduced his award of 19 percent (60.8 degrees) unscheduled permanent disability for cervical and lumbar conditions and 5 percent (6.75 degrees) scheduled permanent disability for loss of use or function of the left foot, as awarded by an Order on Reconsideration, to zero. On review, the issue is extent of scheduled and unscheduled permanent disability. We reverse in part and affirm in part. FINDINGS OF FACT We adopt the ALJ's "Findings of Fact," except for the last sentence. We do not find that Dr. Dinneen stated that his range of motion findings were "normal for this individual." CONCLUSIONS OF LAW AND OPINION Unscheduled Permanent Disability Claimant compensably injured his back on February 5, 2002. The insurer accepted a cervical, lumbar, and sacroiliac strain. (Ex. 42). Claimant treated with Dr. Khalsa, D.C., until March 11, 2002, when he began to treat with Dr. Carvalho, M.D., who became the attending physician. (Ex. 19). On May 29, 2002, Dr. Carvalho performed a closing evaluation, which included range of motion testing. (Ex. 34). On June 26, 2002, Dr. Dinneen examined claimant on behalf of the insurer. Dr. Dinneen performed range of motion testing and concluded that there was no valid objective evidence of measurable impairment due to claimant's injury. 55 Van Natta 4324 (2003)4325 (Ex. 37). On July 15, 2002, Dr. Carvalho concurred with Dr. Dinneen's findings. (Ex. 38). On July 23, 2002, Dr. Dinneen responded to the insurer's inquiry regarding clarification of his June 26, 2002 report. Dr. Dinneen stated that the range of motion measurements that he had made were within the "normal limits for a person of [claimant' s] age and build." (Ex. 39). On July 29, 2002, Dr. Carvalho concurred with Dr. Dinneen's clarification response. (Ex. 40). On August 1, 2002, the insurer closed the claim without an award of permanent disability. (Ex. 41). Claimant requested reconsideration and a medical arbiter. On November 19, 2002, Dr. Berselli, M.D., performed a medical arbiter examination. Dr. Berselli found reduced ranges of motion in claimant's cervical and lumbar spines. (Ex. 43, pp. 3, 4). The Appellate Reviewer also asked Dr. Berselli to examine sensation loss in the plantar surface of claimant's feet, and to describe such loss as either "partial or total due to nerve root injury." (Ex. 42A-1). In response, Dr. Berselli reported partial sensory loss on the plantar surface of the left foot. (Ex. 43-2). Dr. Berselli believed that his findings were valid and opined that claimant had a partial loss of the ability to repetitively use his cervical and lumbar spinal areas due to the accepted condition. Id.Based on Dr. Berselli's impairment findings, a November 27, 2002 Order on Reconsideration awarded 19 percent unscheduled permanent disability and 5 percent scheduled permanent disability for loss of function of the left foot. (Ex. 44). The insurer requested a hearing, contending that Dr. Berselli's evaluation should not be used to rate claimant's impairment. Finding Dr. Dinneen's report with Dr. Carvalho's concurrence more persuasive than Dr. Berselli's medical arbiter evaluation, the ALJ concluded that Dr. Dinneen's report should be used to rate claimant's impairment...

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