Schleiss v. SAIF

Accelerated aging and a mild degenerative condition are not legally cognizable preexisting conditions, and do not trigger apportionment of claimant's impairment in a true combined condition claim.

Schleiss appealed from the Court of Appeals in a judicial review from the Workers’ Compensation Board. Schleiss injured his lower back while at work in 2008, and SAIF accepted his resulting claim for a lumbar strain. After a Schleiss underwent a medical examination, SAIF issued a notice of closure that denied permanent partial disability (PPD) benefits. Schleiss requested reconsideration and the appointment of a medical arbiter, who examined Schleiss and found that Schleiss had both a mild pre-existing degenerative disease as well as accelerating aging because he was a smoker. Relying on the medical arbiter’s findings, the Appellate Review Unit of the Department of Consumer and Business Services issued an order on reconsideration that awarded claimant PPD based on five percent whole-person impairment and no work disability. Among other things, the order on reconsideration concluded that, because only the portion of impairment findings that were “due to” claimant's compensable injury under OAR 436-035-0013, his "value for loss of range of motion," 13.8 percent, was apportioned at 33 percent, for an impairment value of 4.55 percent. Schleiss then requested a hearing before an administrative law judge. That judge affirmed the reconsideration order, and Schleiss sought judicial review, arguing again that he was entitled to an award for all of his impairment as long as it was caused by the accepted condition, and that the Board erred by apportioning the award because no combined condition was present. The Court of Appeals affirmed, opining that OAR 436-035-0013 was consistent with ORS 656.214 in that it provided for apportionment of PPD benefits to ensure that such benefits are only awarded for impairment that is "due to" compensable conditions. The Supreme Court, looking to the text and context of ORS 656.214, held that OAR 436-035-0013 was inconsistent with ORS 656.214 because the OAR authorized the apportionment of Schleiss's award based on preexisting contributing causes that were not legally cognizable preexisting conditions. Reversed and remanded.