73 Van Natta 168 (2021)
In the Matter of the Compensation of JEFF L. DAVIS, Claimant
WCB No. 19-03439
Oregon Worker Compensation
March 2, 2021
Julene
M Quinn LLC, Claimant Attorneys
MacColl Busch Sato PC, Defense Attorneys
Reviewing Panel: Members Woodford and Ousey.
ORDER
ON REVIEW
Claimant
requests review of that portion of Administrative Law Judge
(ALJ) Ogawa’s order that affirmed an Order on
Reconsideration that did not award work disability for a
right arm condition. On review, the issue is permanent
disability (work disability).1 We reverse.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact” with the
following summary and supplementation.
In
April 2016, claimant, a warehouse worker, sustained a
compensable right shoulder strain, right subscapularis tendon
tear, right infraspinatus tendon tear, and right biceps
tendinosis. (Exs. 1, 56-1).
According
to his job description, the heaviest item claimant carried at
work was 74 pounds, and any item that weighed in excess of 50
pounds was slid across the floor or moved on a cart, rather
than lifted. (Ex. A-2).
In May
2016, claimant was seen by Dr. Crihfield. (Ex. 2). Claimant
reported that his injury occurred while sliding a 150-pound
window across the floor. (Ex. 2-4). Dr. Crihfield placed
claimant on modified duty. (Ex. 3).
In May
2016, claimant was seen by NP Cooke, who was initially
designated as his attending physician. (Ex. 7). Claimant
continued on modified duty. (Ex. 8).
In
November 2016, claimant designated Dr. Dovhyy as his
attending physician. (Ex. 47). Dr. Dovhyy continued claimant
on modified duty. (Id.)
[73 Van
Natta 169] In August 2017, claimant was examined by Dr.
Hanna, an orthopedic surgeon, at the insurer’s request.
(Ex. 68). Claimant stated that his work duties included
pushing and pulling windows ranging from 100 to 400 pounds.
(Ex. 68-2). He reported that, at the time of his injury, he
was pushing a window that weighed approximately 125 pounds.
(Id.) Dr. Hanna opined that claimant should not
return to his job at injury without restrictions. (Ex.
68-19). Although recommending a physical capacity
examination, Dr. Hanna stated that claimant would probably be
limited to a sedentary to light job. (Id.)
In
September 2017, Dr. Dovhyy continued claimant’s
modified duties, with a lifting restriction of no more than
two pounds. (Exs. 70, 72). Dr. Dovhyy subsequently concurred
with Dr. Hanna’s report. (Ex. 73).
Claimant
was seen again by Dr. Dovhyy in October 2017. (Ex. 75).
Finding claimant medically stationary, Dr. Dovhyy recommended
a physical capacity evaluation to determine his physical
capabilities. (Ex. 75-4).
A work
capacity evaluation was attempted in both March 2018 and July
2018. (Exs. 78, 82). However, the evaluations could not be
conducted because of claimant’s high blood pressure.
(Exs. 78-1, 82-1).
In
August 2018, Dr. Dovhyy stated that he could not comment on
claimant’s work ability because claimant did not
participate in his two scheduled work capacity evaluations.
(Ex. 83-2).2
In
December 2018, claimant was examined by Dr. Teed, an
orthopedic surgeon, at the insurer’s request. (Ex. 87).
Dr. Teed opined that claimant’s course of symptoms was
not consistent with an acute right shoulder injury related to
the work injury, and that the work injury combined with
preexisting conditions and never constituted the major
contributing cause of claimant’s need for treatment or
disability. (Ex. 87-7). Dr. Teed further opined that claimant
had no impairment related to...
