73 Van Natta 125 (2021)
In the Matter of the Compensation of STEPHANIE SHERMAN, Claimant
WCB No. 19-05811
Oregon Worker Compensation
February 16, 2021
Julene
M Quinn LLC, Claimant Attorneys
Sather
Byerly Holloway - SBH Legal, Defense Attorneys
Reviewing Panel: Members Curey and Ousey.
ORDER
ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ) Mills’s
order that: (1) found that her right foot injury claim was
not prematurely closed; (2) affirmed an Order on
Reconsideration that did not award permanent disability
compensation for a right foot condition; and (3) declined to
award penalties and attorney fees for allegedly unreasonable
claim processing. On review, the issues are premature
closure, permanent disability (impairment and work
disability), penalties, and attorney fees.
We
adopt and affirm the ALJ’s order with the following
supplementation.
In
August 2018, claimant compensably injured her right foot
while working at a bicycling event. (Ex. 2).
In
September 2018, claimant sought treatment from Dr. Mah, her
attending physician. (Ex. 6). Dr. Mah diagnosed a right foot
stress fracture and recommended anti-inflammatories, rest,
icing, and a walking boot. (Ex. 6-1-2). In October 2018, Dr.
Mah stated that claimant’s stress fracture was well-healed
and advised that she discontinue the walking boot. (Ex. 8-1).
In
early November 2018, the self-insured employer accepted a
stress fracture of the right, third metatarsal. (Ex. 9).
In
mid-November 2018, Dr. Jones, an orthopedist, examined
claimant at the employer’s request. (Ex. 12). He opined that
claimant was medically stationary, that she had no impairment
related to the accepted right foot condition, and that she
was not precluded from returning to her regular job. (Ex.
12-8-9). He explained that claimant’s plantar sensation was
normal, her toe range of motion (ROM) findings were normal,
she had 5/5 strength in all muscle groups in her lower
extremities, and there was no swelling around the third
metatarsal, which suggested that her stress fracture had
healed. (Ex. 12-6). He also noted the following ROM findings
for both ankles: 10 degrees of dorsiflexion, 50 degrees of
plantar flexion, [73 Van Natta 126] 20 degrees of inversion,
and 5 degrees of eversion. (Id.) Finally, although
Dr. Jones recorded decreased ROM in claimant’s right knee, he
determined that this finding was invalid because it did not
match previous examination findings and claimant was “fraught
with resistance and anxiety.” (Ex. 12-6-7).
Later
that month, Dr. Mah concurred with Dr. Jones’s conclusions
regarding claimant’s right foot condition. (Ex. 13). In
December 2018, Dr. Mah released claimant to work with no
restrictions. (Exs. 14-1, 15).
In July
2019, Dr. Mah reviewed a description of claimant’s job at the
time of injury and a declaration submitted by claimant, in
which she expressed difficulties performing her job. (Exs.
15a-4-6, 17-2). Dr. Mah continued to release claimant to the
unrestricted duties of her job at the time of injury...
