Johnson v SAIF

Under OAR 436-035-0013, the compensation award for an injury may be reduced when a portion of the injury is attributable to a "legally cognizable preexisting condition" that has been accepted and denied by the insurer.

Johnson appealed an order by the Workers’ Compensation Board (Board) allowing compensation for her injured hand, but not including the portion of her impairment that was attributable to her shoulder injury.  Johnson assigned error to the Board’s holding that 50 percent of her hand’s grip strength impairment was not compensable because it resulted from a shoulder injury for which SAIF denied a claim.  Johnson argued that “there can be no reduction in benefits for impairments attributable to a noncompensable condition. . . except for impairment attributable to a legally cognizable preexisting condition.”  Johnson also argued that her shoulder condition should not be defined as a “legally cognizable preexisting condition.”  The Board argued that a claim that has been outright denied can recover no benefits, adding that a denied claim is a “legally cognizable condition.”  An insurer is entitled to apportion (reduce) the claimant’s award for impairment attributable to an unclaimed combined condition. McDermott v. SAIF, 286 Or App 406, 398 P3d 964 (2017).  The Court held that Johnson’s denied shoulder claim was not entitled to compensation under ORS 656.262(2), so the impairment resulting from the shoulder injury must be apportioned out of the award.  Affirmed