Broeke v. SAIF

Under OAR 436-035-0230(14), so long as there is substantial evidence in the record to support that a worker may not be able to work exactly two hours in an eight-hour period, they may be entitled to “15% of the leg” recovery. Garcia v. Boise Cascade Corp., 309 Or 292, 294, 787 Pd 884 (1990). Under OAR 436-035-0019, a worker is entitled to a chronic condition impairment value if there is substantial evidence and reason to show use of the afflicted body part is restricted one-third, or more, of the time.

Claimant appealed the decision by the Workers’ Compensation Board (“the Board”) to deny him (1) “15% of the leg” recovery under OAR 436-035-0230, (2) a five percent “chronic condition” award under OAR 436-035-0019, and (3) penalties and fees. Claimant assigned error to the Board’s finding that he was not entitled to recovery for any of the aforementioned. On appeal, Claimant argued the Board erred in its interpretation of OAR 436-035-0230(14). Additionally, Claimant argued there was no substantial reason or evidence for the denial of a “chronic condition” award. In response, SAIF argued the Board’s decisions were correct. Under OAR 436-035-0230(14), so long as there is substantial evidence in the record to support that a worker may not be able to work exactly two hours in an eight-hour period, they may be entitled to “15% of the leg” recovery. Garcia v. Boise Cascade Corp., 309 Or 292, 294, 787 Pd 884 (1990). Under OAR 436-035-0019, a worker is entitled to a chronic condition impairment value if there is substantial evidence and reason to show the use of the afflicted body part is restricted one-third, or more, of the time. The Court concluded the Board misinterpreted OAR 436-035-0230(14), but because the substantial, conflicting evidence from Claimant’s doctor provided a substantial reason for the Board’s rejecting “15% of the leg" the misinterpretation was irrelevant. However, the Court found Claimant was entitled to a chronic condition award value because the Board did not provide a substantial reason for not granting one. A determination for penalties and fees was left for the Board on remand. 

Reversed and remanded.