In re Compensation of Stiefbold, 111821 ORWC, 20-04012

Docket NºWCB 20-04012
Case DateNovember 18, 2021
73 Van Natta 923 (2021)
In the Matter of the Compensation of CARL C. STIEFBOLD, Claimant
WCB No. 20-04012
Oregon Worker Compensation
November 18, 2021
          Thomas Coon Newton & Frost, Claimant Attorneys           Wallace Klor Mann Capener, Defense Attorneys           Reviewing Panel: Members Woodford and Ousey.          CORRECTED ORDER ON REVIEW          It has come to our attention that our Order on Review dated November 10, 2021, contained a clerical error. Specifically, the order referred to “Administrative Law Judge (ALJ) Fulsher’s order” in the first paragraph on Page 1. To correct this oversight, we withdraw our prior order and replace it with the following order. The parties’ rights of appeal shall begin to run from the date of this order.          Claimant requests review of Administrative Law Judge (ALJ) Bethlahmy’s order that affirmed an Order on Reconsideration that awarded 9 percent whole person permanent impairment for left shoulder/arm conditions, whereas a Notice of Closure awarded 18 percent whole person permanent impairment. On review, the issue is the extent of permanent disability benefits (permanent impairment). We modify.          FINDINGS OF FACT          We adopt the ALJ’s “Findings of Fact” with the following summary and supplementation.          Claimant sustained a compensable injury on November 14, 2014. (Ex. 2). The self-insured employer initially accepted a left shoulder strain. (Id.)          In September 2015, Dr. Albright performed a rotator cuff repair, subacromial decompression, distal clavicle excision, SLAP repair, and biceps tenodesis. (Ex. 3). Dr. Albright’s operative report also described “an acromioplasty smoothing” procedure. (Ex. 3-2).          In September 2018, the employer modified its acceptance notice to include a left shoulder SLAP tear. (Ex. 10).          In January 2020, claimant’s attending physician, Dr. Puziss, performed a closing examination. (Ex. 19). He noted that claimant was medically stationary, had reduced left shoulder range of motion (ROM), and described claimant’s impairment as “mild.” (Ex. 19-1, -3). Dr. Puziss stated that claimant was continuing in his regular work, but he “probably should avoid heavy and repetitive work overhead.” (Ex. 19-1-3).          A March 11, 2020, Notice of Closure awarded 18 percent whole person permanent impairment for a left distal clavicle excision, left shoulder ROM loss, left arm weakness, and a “chronic condition” award. (Ex. 20-2). Both claimant and the employer requested reconsideration of the closure notice.          On July 10, 2020, Dr. Puziss opined that claimant’s shoulder repair included an acromioplasty, which would not have been performed in the absence of claimant’s need for a SLAP repair. (Ex. 22-2). He also considered claimant to have a significant limitation in the use of the left shoulder because he was only able to use his left shoulder overhead for less than one-third of a period of time. (Id.)          On July 14, 2020, a medical arbiter panel noted that Dr. Albright had performed a rotator cuff repair involving the subscapularis tendon, subacromial decompression, distal clavicle resection, SLAP repair, and biceps tenodesis. (Ex. 23-3). The panel found reduced left shoulder ROM, attributing those findings to the accepted SLAP tear. (Ex. 23-5-6). In doing so, the panel reasoned that, without the labrum injury, claimant would not have required a subsequent surgery or had resulting capsular tightness. (Ex. 23-6). Moreover, the panel concluded that claimant was not “significantly limited in the repetitive use” of the left shoulder. (Ex. 23-5). Finally, after reviewing Dr. Puziss’s July 2020 opinion, the panel was not persuaded to change its opinion. (Ex. 24).          On July 28, 2020, relying on the findings of the medical arbiter panel, the Appellate Review Unit (ARU) issued an Order on Reconsideration that reduced the March 11, 2020, Notice of Closure’s permanent disability award to 9 percent whole person impairment. (Ex. 25-3). In doing so, the ARU found that claimant had undergone a distal clavicle excision that was due, at least in part, to the accepted condition or medical sequelae. (Ex. 25-2). The ARU also noted that, according to the medical arbiter panel, claimant had reduced ROM due to the compensable injury, but was not significantly limited in the repetitive use of the left shoulder. (Ex. 25-3). The ARU ultimately awarded a 5 percent surgical value for a clavicle excision and a...

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