No. 07-02395. LOURDES BROWN, Claimant.

CourtOregon
Oregon Worker Compensation 2008. No. 07-02395. LOURDES BROWN, Claimant In the Matter of the Compensation of LOURDES BROWN, ClaimantWCB Case No. 07-02395ORDER ON REVIEWCoons and Coons, Claimant Attorneys Wallace Klor and Mann PC, Defense AttorneysReviewing Panel: Members Biehl, Langer, and Herman.The self-insured employer requests review of Administrative Law Judge (ALJ) Naugle's order that increased claimant's unscheduled permanent partial disability (PPD) award for her cervical spine from 15 percent (48 degrees), as granted by an Order on Reconsideration, to 22 percent (70.4 degrees). The employer also moves to strike claimant's respondent's brief as untimely filed. On review, the issues are motion to strike and extent of unscheduled PPD. We grant the motion to strike and reverse.[1] FINDINGS OF FACT We adopt the ALJ's "Findings of Fact." CONCLUSIONS OF LAW AND OPINION Claimant has an accepted claim for a disabling cervical trapezius strain and C5-6 disc herniation. (Ex. 4). Based upon the impairment findings of Dr. Rosenbaum, with whom claimant's attending physician concurred, a December 2006 Notice of Closure awarded 17 percent unscheduled PPD for claimant's neck.(fn2) The Notice of Closure attributed 9 percent permanent impairment to her decreased cervical ROM, and the remaining impairment to other conditions related to surgeries and a chronic condition. (Ex. 14). Claimant requested reconsideration and appointment of a medical arbiter. Based upon his February 2007 examination, the medical arbiter, Dr. Smith, concluded that claimant's ROM findings were "not valid for rating impairment because of the lack of consistency." (Ex. 17-8). Consequently, finding no cervical ROM impairment, an Order on Reconsideration reduced claimant's unscheduled PPD award to 15 percent.(fn3) (Ex. 20). Claimant requested a hearing. Relying on the impairment findings of Dr. Rosenbaum, the ALJ increased claimant's unscheduled PPD to 22 percent. On review, the employer argues that the medical arbiter's "invalid" ROM impairment findings should be used in rating claimant's unscheduled PPD. For the following reasons, we agree. Where, as here, a medical arbiter is used, impairment is established based on objective findings of the medical arbiter, except where a preponderance of the evidence demonstrates that different findings by the attending...

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