71 Van Natta 1209 (2019)
In the Matter of the Compensation of BRANDY C. AGUIRRE, Claimant
WCB No. 18-04010
Oregon Worker Compensation
October 18, 2019
Moore
& Jensen, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: Members Curey and Ousey.
ORDER ON RECONSIDERATION
On
September 25, 2019, we modified an Administrative Law
Judge’s (ALJ’s) order that affirmed an Order on
Reconsideration that awarded 10 percent whole person
permanent impairment and 16 percent work disability for a
concussion condition, left zygomatic arch contusion, and
cervical strain. Specifically, concluding that a medical
arbiter’s opinion was ambiguous and the attending
physician’s opinion was more accurate, we increased
claimant’s whole person permanent impairment award to
36 percent and her work disability award to 48 percent.
Contesting our analysis of the medical arbiter panel and
attending physician’s findings, the SAIF Corporation
seeks reconsideration of our decision and affirmance of the
ALJ’s order.
On
reconsideration, SAIF contends that: (1) the arbiter panel
explained that a cranial nerve examination and informal
cognitive assessment provided the basis for its conclusion
that it was unable to describe any findings of impairment;
(2) the arbiter panel need not address the OAR 436-035-0390
“brain impairment” criteria because it concurred
with Dr. Guillaumot’s finding that the
neuropsychological evaluation was likely invalid; (3) the
arbiter panel’s report should be followed because the
arbiter panel’s examination was conducted closer in
time to the reconsideration order; and (4) the findings of
Dr. Weller, claimant’s attending physician, were based
on claimant’s subjective complaints and, therefore, not
more accurate than the arbiter panel’s findings.
After
considering SAIF’s contentions, we adhere to our prior
decision. We reason as follows.
Impairment
for injuries to the brain or head is determined based on a
preponderance of medical opinion that applies or describes
the criteria set forth in OAR 436-035-0390(10). See
OAR 436-035-0390(10). The OAR 436-035-0390 “brain
impairment” criteria describes several considerations,
including...
