In re Compensation of Parsons, 072820 ORWC, 19-04849

• Case Date: July 28, 2020
• Court: Oregon

72 Van Natta 697 (2020) In the Matter of the Compensation of ANDREW L. PARSONS, Claimant WCB No. 19-04849 Oregon Worker Compensation July 28, 2020           Ransom Gilbertson Martin et al, Claimant Attorneys           SAIF Legal Salem, Defense Attorneys           Reviewing Panel: Members Curey and Ousey.          ORDER ON REVIEW          Claimant requests review of Administrative Law Judge (ALJ) Somers’s order that affirmed an Order on Reconsideration that awarded 5 percent whole person permanent impairment and 20 percent work disability for right shoulder conditions. On review, the issue is permanent disability (permanent impairment and work disability).          We adopt and affirm the ALJ’s order with the following supplementation.          On reconsideration, where a medical arbiter is used, impairment is established by the medical arbiter, except where a preponderance of the medical evidence demonstrates that different findings concurred with by the attending physician at the time of claim closure are more accurate and should be used. OAR 436-035-0007(5); SAIF v. Owens, 247 Or.App. 402, 411-415 (2011), recons, 248 Or.App. 746 (2012); Douglas E. Rivas, 71 Van Natta 1029, 1029 (2019). Absent persuasive evidence to the contrary, we are not free to disregard the medical arbiter’s findings. See Hicks v. SAIF, 194 Or.App. 655, recons, 196 Or.App. 146, 152 (2004); Khrul v. Foremans Cleaners, 194 Or.App. 135, 130 (2004); Rivas, 71 Van Natta at 1029-30. Impairment findings are ratable unless the physician determines the findings are invalid. See OAR 436-035-0007(11); Robin R. Jorgensen, [72 Van Natta 179], 181 n 3 (2020).          Here, Dr. Van Tilburg performed an arbiter examination. (Ex. 34). Dr. Van Tilburg found that claimant’s impairment deficits were invalid, likely due to “symptom magnification, malingering, deconditioning, significant increase in body mass index, and other factors.” (Ex. 34-7-8).          Before the arbiter’s examination, Dr. Gramstad, the attending physician...