No. 07-04685 (2008). ROBERT A. VOSS, Claimant.

CourtOregon
Oregon Worker Compensation 2008. No. 07-04685 (2008). ROBERT A. VOSS, Claimant In the Matter of the Compensation of ROBERT A. VOSS, ClaimantWCB Case No. 07-04685ORDER ON REVIEWPhilip H Garrow, Claimant Attorneys Julie Masters, SAIF Legal Salem, Defense AttorneysReviewing Panel: Members Lowell and Biehl.The SAIF Corporation requests review of Administrative Law Judge (ALJ) Davis' order that: (1) awarded 15 percent whole person impairment and 21 percent work disability for claimant's right shoulder condition, whereas an Order on Reconsideration had awarded 19 percent and 25 percent respectively; and (2) affirmed a penalty under ORS 656.268(5)(e). In his respondent's brief, claimant seeks reinstatement of the Order on Reconsideration's award of whole person impairment and work disability. On review, the issues are extent of permanent disability (impairment and work disability) and penalties. We affirm in part and modify in part. FINDINGS OF FACT On March 14, 2005, claimant sustained a compensable left shoulder injury. On September 14, 2005, while the left shoulder claim remained open, claimant sustained a compensable right shoulder injury. (Ex. 3). Claimant was placed on modified duty. (Exs. 10, 17). In January 2006, claimant had right shoulder surgery, including an arthroscopic subacromial decompression, bursectomy, and debridement of a "type I SLAP tear." (Ex. 4). Claimant underwent a second right shoulder surgery on August 22, 2006, including rotator cuff repair, debridement, distal clavicle excision and revision of the subacromial decompression. (Ex. 15). The March 2005 left shoulder claim was closed on August 21, 2006. (Ex. 18). Claimant requested reconsideration. An Order on Reconsideration, issued on October 23, 2006, awarding 19 percent whole person impairment for the left shoulder. It also awarded 28 percent work disability. In calculating claimant's work disability, the Appellate Review Unit (ARU) assigned an age value of 1, an educational value of 0, a Specific Vocational Preparation (SVP) value of 2, and an adaptability value of 3. The SVP of 2 was added to that age/education value of 1 for a total of 3, which was multiplied by the adaptability value of 3 for a social/vocational value of 9 percent. The social/vocational value was added to the whole person impairment value of 19 percent, for a work disability award of 28 percent. (Ex. 18-3). The reconsideration order has become final. On January 29, 2007, Dr. Bollom declared claimant's right shoulder condition medically stationary and found loss of range of motion (ROM). However, Dr. Bollom opined that claimant's ROM was "normal bilateral[ly]." (Ex. 23-1). On March 9, 2007, a Notice of Closure closed the right shoulder claim. Claimant was awarded 7 percent whole person impairment and no additional work disability. (Ex. 27). Claimant requested reconsideration. The June 22, 2007 Order on Reconsideration awarded 19 percent whole person impairment and 25 percent work disability for the right shoulder. The ARU calculated claimant's work disability as follows: an age value of 1, an educational value of 0, and an SVP value of 1. The ARU then applied an offset pursuant to OAR 436-035-0015, finding that disability from the left shoulder claim was still present on the date of injury. (Ex. 34-3). However, the ARU found that, for his left shoulder claim, claimant's prior adaptability value of 3 was based on a loss of Base Functional Capacity (BFC) from "heavy" to a Residual Functional Capacity (RFC) of "medium." Reasoning that, for the current right shoulder claim, claimant had a BFC of "medium" and an RFC of "light," the ARU determined that claimant was entitled to an additional adaptability value of 3 for the right shoulder claim. Thus, the ARU added the age/education value of 1 to the SVP of 1 for a total of 2, which was multiplied by the adaptability factor of 3, for a total social/vocational value of 6 percent. The social/vocational value of 6 percent was then added to the 19 percent whole person...

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