In the Matter of the Compensation of TIMOTHY LEAK, Claimant
WCB No. 18-04591
Oregon Worker Compensation
October 1, 2019
Julene
M Quinn LLC, Claimant Attorneys.
Sather
Byerly & Holloway, Defense Attorneys.
Reviewing Panel: Members Woodford and Lanning.
ORDER ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ) Smith's
order that affirmed an Order on Reconsideration that did not
award permanent impairment for a psychological condition. On
review, the issue is permanent disability (permanent
impairment and work disability).1 We modify.
FINDINGS
OF FACT
We
adopt the ALJ's "Findings of Fact."
CONCLUSIONS
OF LAW AND OPINION
Relying
on the impairment findings of claimant's attending
physician, Dr. Thibert, the ALJ affirmed the Order on
Reconsideration, which had awarded no permanent impairment or
work disability. The ALJ reasoned that Dr. Thibert's
impairment findings and opinion supported a Class 1
impairment rating for claimant's accepted Post-Traumatic
Stress Disorder (PTSD) condition. Because a Class 1
impairment rating provides for zero percent impairment under
OAR 436-035-0400(5)(a),2 the ALJ also concluded that claimant
was not entitled to work disability.
On
review, claimant contends that Dr. Thibert's opinion
persuasively establishes that his accepted PTSD condition is
properly classified as a Class 2 impairment (moderate), under
OAR 436-035-0400(5)(b),3 which is supported by Dr. Thibert's
description of claimant's residual anxiety/depressive
symptoms and work limitations. For the following reasons, we
agree that claimant's impairment rating should be a Class
2, although we find that Dr. Thibert's impairment
findings and opinion support a mild, rather than a moderate,
impairment.
Claimant
has the burden of establishing the nature and extent of his
disability.4 ORS 656.266(1). Moreover, as the party
challenging the Order on Reconsideration, he has the burden
of establishing error in the reconsideration process.[5] Marvin
Wood Products v. Callow, 171 Or.App. 175, 183 (2000).
For the
purpose of rating permanent impairment, only the opinions of
claimant's attending physician at the time of claim
closure, other medical findings with which the attending
physician concurred, and the findings of a medical arbiter
may be considered. ORS 656.245(2)(b)(B); ORS 656.268(7);
Tektronix, Inc. v. Watson, 132 Or.App. 483 (1995);
Koitzsch v. Liberty Northwest, Ins. Corp., 125
Or.App. 666 (1994). Here, a medical arbiter exam was not
requested. Thus, the impairment findings made by Dr. Thibert,
claimant's attending physician, and any impairment
findings with which he concurred, are used to determine
impairment. (Id.)
On June
22, 2016, claimant sought treatment from Dr. Leeberg (PhD), a
licensed psychologist, whose practice specialties include
treatment for trauma and PTSD. (Ex. 24-1). Dr. Leeberg
diagnosed PTSD and regularly treated claimant through March
2017. (Exs. 5, 24-1). Dr. Thibert also treated claimant for
his PTSD condition, including prescribing medications. (Exs.
26, 31, 32-15, 39, 43, 44, 45).
In July
2016, due to claimant's PTSD condition, Dr. Thibert
opined that claimant...
