In re Compensation of Spurger, 122618 ORWC, 10-06324

Docket Nº:WCB 10-06324
Case Date:December 26, 2018
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...

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