70 Van Natta 1861 (2018)
In the Matter of the Compensation of ANGELICA M. SPURGER, Claimant
WCB No. 10-06324
Oregon Worker Compensation
December 26, 2018
Donald
M Hooton Attorney At Law, Claimant Attorneys.
SAIF
Legal Salem, Defense Attorneys.
Reviewing Panel: Members Curey and Lanning. [1]
SECOND ORDER ON REMAND
This
matter is before the Board on remand from the Court of
Appeals. Spurger v. SAIF, 292 Or.App. 227 (2018)
(Spurger II). The court has reversed our prior
order, Angelica M. Spurger, 67 Van Natta 1798
(2015), that, on remand from a previous court decision
(Spurger v. SAIF, 266 Or.App. 183 (2014)
(Spurger I)), did not award a "chronic
condition" impairment value for claimant's left hip
condition. Reasoning that our conclusion that a
"difficulty" performing repetitive movements is not
a "significant limitation" under former
OAR 436-035-0019, the court concluded that our order was not
supported by substantial reason. Consequently, the court has
remanded. Having received the parties' supplemental
briefs, we proceed with our review in accordance with the
court's directive.[2]
FINDINGS
OF FACT
We
continue to adopt the ALJ's "Findings of Fact,"
briefly summarized and supplemented as follows.
Following
claimant's compensable injury, SAIF accepted a lumbar
strain, a left hip strain, and left trochanteric bursitis.
(Ex. 14). Claimant was off work from January 2, 2009 through
January 7, 2009, when she returned to modified work at her
regular hours and wages. (Ex. 3). Claimant's attending
physician, Dr. Tran, concluded that her accepted conditions
were medically stationary as of February 16, 2010, and
released her to "[c]ontinue working at 4 days/week with
current work load." (Ex. 13).
On
August 9, 2010, Dr. Wong conducted a closing examination,
reporting almost normal lumbar range of motion (ROM), reduced
left hip ROM, and tenderness with palpation over the left
trochanteric bursa, left SI joint, and sciatic notch. (Ex.
17). He also responded to a "check-the-box"
concurrence letter from SAIF. (Ex. 16). In doing so, Dr. Wong
reviewed a job analysis for a "Certified Medication
Aide" (CMA), which described claimant's job as
"light" work, as well as a February 24, 2010,
re-evaluation report from Northwest Occupational Medicine
Center (NWOMC) following claimant's participation in a
pain program, which demonstrated her ability to perform
"light" work. (Ex. 16-3).
Asked
whether claimant's limitation in the repetitive use of
the left hip for the accepted conditions should be described
as "no limitation," "some limitation," or
"significant limitation," Dr. Wong selected
"some limitation." (Exs. 16-2, 18). He also agreed
that claimant could return to her regular work performing CMA
duties for more than 46 patients, as described in the job
analysis, as a result of her accepted conditions only. (Exs.
16-3, 18). Dr. Wong released claimant to her normal position
as a CMA, with modifications in her work schedule of "2
days on/1 day off/2 days on," and sedentary/light
category work. (Ex. 17-6). Dr. Tran concurred with Dr.
Wong's diagnoses, work capacities and "permanent
impairment findings." (Ex. 19).
In
September 2010, a Notice of Closure awarded 1 percent whole
person impairment and 17 percent work disability. (Ex. 22-2).
Claimant requested reconsideration. (Ex. 25).
On
September 7, 2010, Dr. Wong explained his conclusion that
claimant had some limitation in the repetitive use of her
left hip as a result of her chronic bursitis condition. (Ex.
25-5). In describing claimant's specific limitations, he
stated that claimant "would have difficulty with
repetitive squatting, walking long distances and static
standing for long periods of time." (Id.) Dr.
Wong indicated that, as a physician, the term
"significant" meant that there was a major loss of
function as a result of the limitation. (Id.) He
then indicated that it would be beneficial if more guidance
were provided regarding how the word "significant"
should be interpreted. (Id.)
Dr.
Wong also opined that claimant would be able to perform her
CMA position, except for the "Certified Nursing
Assistant" duties included in that position, which
involved "occasionally repositioning patients or doing
patient transfers." (Ex. 25-6). He stated that his
response to SAIF...
