In re Compensation of Norton, 110619 ORWC, 18-00934

• Case Date: November 06, 2019
• Court: Oregon

71 Van Natta 1273 (2019) In the Matter of the Compensation of KRISTOFER K. NORTON, Claimant WCB No. 18-00934 Oregon Worker Compensation November 6, 2019           Ransom Gilbertson Martin et al, Claimant Attorneys.           Reinisch Wilson Weier, Defense Attorneys.           Reviewing Panel: Members Woodford, Lanning, and Wold.           ORDER ON REVIEW          Claimant requests review of Administrative Law Judge (ALJ) Otto’s order that affirmed an Order on Reconsideration that did not award whole person permanent impairment for claimant’s left knee condition. On review, the issue is permanent disability (permanent impairment). We reverse.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact,” with the following summary and supplementation.          On March 25, 2016, claimant, an airline-ramp agent responsible for loading and unloading luggage from carts, struck the anterior aspect of his left knee against a metal wedge that protruded from the side of the cart. (Ex. 18-2). He had immediate onset of pain and difficulty performing his regular duties. (Id.)          On March 29, 2016, Dr. Bessas found crepitus in claimant’s left knee with flexion and extension. (Ex. 2-2). He recommended physical therapy. (Id.)          On May 5, 2016, on referral from Dr. Bessas, Dr. Southerland examined claimant, recorded a history of ongoing left knee pain, and ordered an MRI to rule out a medial meniscal tear. (Ex. 9-3). Upon reviewing claimant’s left knee MRI, Dr. Southerland diagnosed an “In[tra]-substance partial thickness tear, left knee anterior cruciate ligament.” (Ex. 13-1).          On August 23, 2016, Dr. Farris, an orthopedic surgeon, examined claimant at the self-insured employer’s request. (Ex. 18-1). He diagnosed patellar tendinitis, but he could not make a diagnosis of anterior cruciate ligament tear. (Ex. 18-7). Dr. Farris found that claimant’s patellar tendinitis condition was medically stationary with a 10 degree loss of active flexion due to the work injury. (Ex. 18-5, -6, -9).          [71 Van Natta 1274] On November 3, 2016, Dr. Southerland concurred with the findings and conclusions of Dr. Farris. (Ex. 19).          The employer accepted claimant’s injury claim for a left knee contusion and left leg patellar tendinitis. (Exs. 22, 27).          In March 2017, claimant was unable to continue to perform his job duties as a ramp agent due to his ongoing left knee symptoms. He resigned his position and accepted a less-physically demanding position as a ticket agent with another airline. (Ex. 31-3).          An October 4, 2017, Notice of Closure awarded 5 percent left knee impairment, equal to 2 percent whole person impairment, for the reduced range of motion (ROM) found by Dr. Farris (with which Dr. Southerland concurred). (Ex. 29). Claimant requested reconsideration and the appointment of a medical arbiter panel. (Ex. 33-1).          The Appellate Review Unit (ARU) scheduled claimant to be examined by a medical arbiter panel on January 17, 2018. In advance of the scheduled panel examination, the ARU provided the arbiter panel with a series of examination instructions and questions to be addressed in the panel’s subsequent report. (Ex. 30A-4 through 6). Regarding a “chronic condition” limitation, the arbiter panel was instructed as follows:

“A worker is eligible for a chronic condition impairment value when, due to a chronic and permanent medical condition, the worker is significantly limited in the repetitive use’ of one or more body parts. * * * WCD interprets the term ‘significantly limited’ as requiring a determination of whether a worker is confined or restricted in the repetitive use of a body part in a manner such that the confinement or restriction is important, meaningful, or notable. Further, WCD has determined that confined or restricted (‘limited’) ‘repetitive use’ is important, meaningful, or notable (‘significant’) when the worker is unable to repetitively use the body part for more than two-thirds of a period of time.

“With the above information in mind, specify whether due to a permanent and chronic condition this worker is unable to repetitively [71 Van Natta 1275] use the left knee/leg for more than two-thirds of a period of time. If so, identify the specific body part(s) involved.”1 (Emphasis in original).

         Following a review of claimant’s medical records and an examination of claimant, the medical arbiter panel issued its report. (Ex. 31). Noting that claimant was unable to continue his regular work without restrictions, the panel reported that he experienced left knee pain with stair climbing, squatting, kneeling, crawling, driving, and repetitive use. (Ex. 31-4). Describing claimant as cooperative and providing excellent effort, the panel observed that he exhibited no pain behaviors during the examination. (Id.) The panel concluded that their findings were valid. (Id.)          The panel determined that claimant’s squatting was “limited to about 30%” due to pain in the left patellar tendon area. (Ex. 31-5). They considered his left knee ROM to be the same as the uninjured right knee ROM. (Ex. 31-6). The panel found no strength loss, no instability of the left knee, mild anteroposterior laxity bilaterally, symmetric, and no medial or lateral laxity. (Id.)          The panel concluded as follows:

“It is our opinion that the worker is significantly limited in the repetitive use of his left knee, i.e., unable to repetitively use the left knee for more than 2/3rds of a period of time. No repetitive squatting, kneeling, crawling, or impact to the left knee patellar tendon. This limitation is caused by a permanent and chronic condition resulting from the accepted condition of left leg patellar tendinitis, a direct medical sequela of this accepted condition.” (Ex. 31-6) (emphasis in original).

         Thereafter, an ARU representative wrote to the medical arbiter panel, seeking additional information. (Ex. 32-1). Noting the panel’s “significant limitation” conclusion, the ARU representative’s letter repeated the previous ARU letter, with the following additional language:

[71 Van Natta 1276] “However, when granting an award for chronic condition impairment, we must determine if the worker is significantly limited in his ability to repetitively use the left knee joint for more than two-thirds of a period of time. Chronic condition impairment does not apply to the specific actions the body part performs. The worker can have limitations with squatting, kneeling and crawling, but this does not necessarily mean that the left knee itself is significantly limited in repetitive use” (Emphasis supplied).

         In response to ARU’s request for additional information, the medical arbiter panel checked the box indicating that claimant was able to repetitively use his left knee more than two-thirds of a period of time. (Ex. 32-2). The panel physician who responded on behalf of the panel added the comment - “Thank you for the clarification.” (Ex. 32-2).          On February 1, 2018, an Order on Reconsideration reduced claimant’s 2 percent whole person impairment award to zero based on the medical arbiter...