Opinion
Own Motion No. 13-0031M
02-26-2014
In the Matter of the Compensation of ROGER L. PAYNE, Claimant
Dodge and Associates, Claimant Attorneys Gress & Clark LLC, Defense Attorneys
OWN MOTION ORDER REVIEWING CARRIER CLOSURE
Dodge and Associates, Claimant Attorneys
Gress & Clark LLC, Defense Attorneys
Reviewing Panel: Members Lanning and Lowell.
Claimant requests review of the March 1, and March 8, 2013 Notices of Closure that awarded an additional 21 percent (31.5 degrees) scheduled permanent partial disability (PPD) for his "post-aggravation rights" new/omitted medical conditions ("right wrist posttraumatic arthritis and left carpal tunnel syndrome," "pain disorder (psychiatric diagnosis/consequential condition)," and "depression"). Claimant seeks additional scheduled and unscheduled PPD awards. Based on the following reasoning, we modify the closure notices.
The insurer listed the "mailing date" as "March 1, 2013" on two separate Notices of Closure, although the second such closure notice was signed on "March 8, 2013." (Exs. 269, 271). For ease of reference and to avoid confusion, we identify the latter Notice of Closure as being issued on "March 8, 2013." In addition, we consider the March 1, 2013 Notice of Closure to amend the February 20, 2013 Notice of Closure.
Claimant's March 2, 2001 claim was accepted as a nondisabling claim. Thus, claimant's aggravation rights expired on March 2, 2006. Therefore, when claimant sought claim reopening in September 2006, the claim was within our Own Motion jurisdiction. ORS 656.278(1). On January 18, 2008, the insurer voluntarily reopened claimant's Own Motion claim for "post-aggravation rights" new/omitted medical conditions ("right wrist posttraumatic arthritis and left carpal tunnel syndrome"). (Ex. 17). On July 26, 2010, the insurer voluntarily reopened claimant's Own Motion claim for a "post-aggravation rights" new/omitted medical condition ("pain disorder (psychiatric diagnosis/consequential condition)"). (Ex. 73). On February 20, 2013, as amended on March 1, 2013, the insurer issued Notices of Closure for the aforementioned "post-aggravation rights" new/omitted medical conditions. (Exs. 266, 269). On March 8, 2013, the insurer voluntarily reopened claimant's Own Motion claim for a "post-aggravation rights" new/omitted medical condition ("depression"). On March 8, 2013, the insurer closed the reopened "depression" claim. (Ex. 270).
FINDINGS OF FACT
On March 2, 2001, claimant sustained a compensable right wrist injury while working as a mechanic. (Exs. 1, 50-1). In August 2001, he underwent a right carpal tunnel release and arthroscopy of the right wrist with thermal tightening of the scapholunate ligament. (Ex. 50-1). Subsequently, he underwent surgical stabilization of the right distal radioulnar joint. (Ex. 50-1).
A May 27, 2003 Notice of Closure awarded 18 percent (27 degrees) scheduled PPD for loss of use or function of the right forearm (wrist). (Ex. 6). At that time, the accepted conditions were "right wrist strain, TFCC tear, right distal radioulnar joint instability, right ring finger extensor tendon cyst, and rupture extensor digitorum communis tendon, ring finger." (Exs. 3, 4, 5).
On November 2, 2006, the insurer accepted a "post-aggravation rights" new/omitted medical condition ("right wrist posttraumatic arthritis"). (Ex. 9).
On June 20, 2007, claimant underwent a right wrist arthrodesis with allograft, which included fusion of three carpal bones (scaphoid, lunate, and capitate) and resulted in fusion at 30 degrees dorsiflexion. (Exs. 50-1, 65, 70-1, 117, 248-3, 259). Subsequently, he underwent surgical repair of a ruptured right index finger flexor tendon. (Ex. 50-2).
On July 9, 2007, the insurer accepted another "post-aggravation rights" new/omitted medical condition ("left carpal tunnel syndrome"). (Exs. 16, 18). In September 2007, claimant underwent a left carpal tunnel release. (Ex. 50-2).
On January 18, 2008, the insurer voluntarily reopened claimant's Own Motion claim for the accepted "post-aggravation rights" new/omitted medical conditions ("right wrist posttraumatic arthritis and left carpal tunnel syndrome"). (Ex. 17).
On June 16, 2008, claimant's re-ruptured right index finger flexor tendon was surgically repaired. (Ex. 50-2).
On March 18, 2009, a repeat fusion of claimant's carpometacarpal (CMC) joint of the right wrist was performed. (Exs. 50-2, 70-1). On December 15, 2009, he underwent a revision arthrodesis at the right long CMC joint. (Ex. 70-1).
On January 15, 2010, as reconsidered on February 12, 2010, an Administrative Law Judge's (ALJ's) order ultimately found a "post-aggravation rights" new/omitted medical condition ("depression") compensable. (Exs. 20, 24).
In February 2010, Dr. Mooney, Ph.D., psychologist, began treating claimant for depression. (Ex. 27). Thereafter, Dr. Mooney provided ongoing psychotherapy.
In July 2010, Dr. Knight referred claimant to Dr. Blake, M.D., who thereafter provided ongoing pain management treatment for his right wrist. (Ex. 70).
On July 26, 2010, the insurer accepted a "post-aggravation rights" new/omitted medical condition ("pain disorder (psychiatric diagnosis/ consequential condition)"). (Ex. 74). The insurer also voluntarily reopened claimant's Own Motion claim for this condition. (Ex. 73).
On March 15, 2011, Dr. Orfaly performed a "revision, right third carpometacarpal joint fusion with application of bone graft substitute" and hardware removal. (Ex. 116).
On January 17, 2012, Dr. Orfaly removed hardware and revised claimant's right middle finger CMC joint arthrodesis, using a bone graft that was harvested from the right iliac crest. (Ex. 177).
On April 30, 2012, claimant changed his attending physician to Dr. Blake. (Exs. 204, 205).
On November 8, 2012, Dr. Heck performed a psychiatric "reexamination" on behalf of the insurer. (Ex. 249). He opined that it was "medically probable" that claimant was without permanent impairment for the depression and pain disorder conditions, although it was "possible" that he might be rated as having a Class 2 minimal permanent impairment due to his chronic suicidal ideation. (Ex. 249-14-15). If that was the case, Dr. Heck recognized other factors that contributed to the permanent impairment and apportioned them as follows: "Right wrist injury (40%); claim administration (25%); marital discord (20%); and financial distress (15%)." (Ex. 249-15).
Dr. Blake concurred with Dr. Heck's report. (Ex. 252).
On December 4, 2012, claimant requested that the insurer accept a "post-aggravation rights" new/omitted medical condition ("neurogenic right hip pain"). (Ex. 254).
Dr. Blake released claimant to light duty work, with the restriction of no use of the right hand. (Exs. 262, 263, 264, 273, 274).
On February 20, 2013, as amended on March 1, 2013, the insurer issued a Notice of Closure that closed claimant's Own Motion claim for the following reopened "post-aggravation rights" new/omitted medical conditions: right wrist posttraumatic arthritis, left carpal tunnel syndrome, and pain disorder (psychiatric diagnosis/consequential condition). (Exs. 266, 269). Claimant was also awarded an additional 21 percent (31.5 degrees) scheduled PPD for loss of use or function of the right forearm (wrist). (Id.)
Other than different mailing dates and signatures of different claim adjusters, there is no difference between these two Notices of Closure. (Exs. 266, 269).
On March 8, 2013, the insurer voluntarily reopened claimant's Own Motion claim for a "post-aggravation rights" new/omitted medical condition ("depression"). (Ex. 270). That same date, the insurer issued an Own Motion Notice of Closure for this reopened "depression" claim. (Ex. 271). This closure notice awarded no additional PPD. (Id.)
The insurer listed the "mailing date" as "March 1, 2013" on this voluntary reopening; however, this document was signed on "March 8, 2013." (Ex. 270). Under such circumstances, we find that, on March 8, 2013, the insurer voluntarily reopened the Own Motion claim for a "post-aggravation rights" new/omitted medical condition ("depression").
Claimant requested review of the Own Motion Notices of Closure, seeking additional PPD and the appointment of a medical arbiter. On July 16, 2013, we referred the claim to the Director for the appointment of a medical arbiter. Roger L. Payne, 65 Van Natta 1285 (2013).
In that order, we also addressed claimant's arguments regarding his medically stationary status, and concluded that the insurer's March 1, and March 8, 2013 Own Motion Notices of Closure were not premature. Payne, 65 Van Natta at 1293.
On October 10, 2013, Dr. Harris, the medical arbiter for claimant's physical "post-aggravation rights" new/omitted medical conditions ("right wrist posttraumatic arthritis and left carpal tunnel syndrome"), measured right/left wrist ranges of motion (ROM) as follows: 0/70 degrees dorsiflexion; 0/78 degrees palmar flexion; 0/30 degrees radial deviation; 0/40 degrees ulnar deviation. He found Grade 2 (less than normal) sensation over the palmar surface of the right index and long fingers; the palmar sensation was otherwise normal in both hands. He found 5/5 strength in both upper extremities. He stated that claimant was significantly limited in the repetitive use of the right wrist. He opined that the findings were valid and due to the newly accepted condition of right wrist posttraumatic arthritis. He found no impairment due to the newly accepted condition of left carpal tunnel syndrome.
On November 6, 2012, Dr. Dodson, the medical arbiter for claimant's psychiatric "post-aggravation rights" new/omitted medical conditions ("pain disorder (psychiatric diagnosis/consequential condition)," and "depression"), discussed six aspects of fabrication of symptoms and malingering that claimant demonstrated during his treatment history and his current psychiatric examination. Dr. Dodson stated that claimant's mental impairment was Class 2 (mild); however, his opinion was ambiguous regarding the extent and cause of any mental impairment.
CONCLUSIONS OF LAW AND OPINION
The claim was accepted and reopened for the processing of "post-aggravation rights" new/omitted medical conditions ("right wrist posttraumatic arthritis and left carpal tunnel syndrome," "pain disorder (psychiatric diagnosis/consequential condition)," and "depression"). Such a claim may qualify for payment of permanent disability compensation. ORS 656.278(1)(b); Goddard v. Liberty Northwest Ins. Corp., 193 Or App 238 (2004).
We have previously determined that claimant's claim was not prematurely closed. Payne, 65 Van Natta at 1293. By this reference, we adhere to, and republish, our reasoning in reaching that conclusion.
Furthermore, the closure of such a claim pertains only to those reopened "post-aggravation rights" new/omitted medical conditions. See Cheryl A. Blanchard, 58 Van Natta 2663, 2666 (2006) (closure of an Own Motion claim is limited to those conditions for which the claim has been reopened, either voluntarily by the carrier or by an Own Motion order); Ginney E. Etherton, 55 Van Natta 2216 (2003); Arvin D. Lal, 55 Van Natta 816 (2003). Thus, our review of the PPD issue is limited to those conditions that were previously accepted and for which the claim was reopened at claim closure.
In this regard, we note that, on December 4, 2012, claimant requested that the insurer accept a "post-aggravation rights" new/omitted medical condition ("neurogenic right hip pain"). (Ex. 254). ORS 656.267. The insurer remains responsible for processing that claim. If the claim is "determined to be compensable," the insurer must then process the claim according to the Board's rules. See OAR 438-012-0001(4); OAR 438-012-0030(1); James W. Jordan, 58 Van Natta 34, 37 (2006). Nevertheless, because this "post-aggravation rights" new/omitted medical condition ("neurogenic right hip pain") was not accepted and reopened at the time of the March 2013 Notices of Closure, we do not consider that condition in determining claimant's entitlement to PPD. See Blanchard, 58 Van Natta at 2666.
The PPD limitation set forth in ORS 656.278(2)(d) applies where there is (1) "additional impairment" to (2) "an injured body part" that has (3) "previously been the basis of a [PPD] award." Cory L. Nielsen, 55 Van Natta 3199, 3206 (2003). If those conditions are satisfied, the Director's standards for rating new and omitted medical conditions related to non-Own Motion claims apply to rate "post-aggravation rights" new or omitted medical condition claims. Under such circumstances, we redetermine the claimant's permanent disability pursuant to those standards before application of the limitation in ORS 656.278(2)(d). Jeffrey L. Heintz, 59 Van Natta 419 (2007); Nielsen, 55 Van Natta at 3207-08.
On the other hand, where it is determined that the limitation in ORS 656.278(2)(d) does not apply, the permanent disability for the "post-aggravation rights" new/omitted medical condition is rated under the Director's standards without "redetermination" of disability. Terry L. Rasmussen, 56 Van Natta 1136 (2004) (ORS 656.278(2)(d) "limitation" did not apply; new medical condition rated without "redetermining" disability). The first step is to determine whether the factors that require application of the ORS 656.278(2)(d) limitation are satisfied.
Here, all three factors are not satisfied regarding claimant's "pain disorder (psychiatric diagnosis/consequential condition)," and "depression" conditions. Specifically, he has not received a prior unscheduled PPD award for psychiatric conditions. Consequently, the ORS 656.278(2)(d) limitation does not apply to claimant's psychiatric conditions, and the permanent impairment for those newly accepted conditions is rated under the Director's standards without a "redetermination" of disability. See Connie J. Mosier, 61 Van Natta 2026, 2028 n 4 (2009) (ORS 656.278(2)(d) "limitation" did not apply where "post-aggravation rights" new/omitted medical condition body part had not been the basis of a prior PPD award).
In addition, all three factors are not satisfied regarding claimant's "left carpal tunnel syndrome." In this regard, claimant has not received a prior scheduled PPD award for the left forearm (wrist). Consequently, the ORS 656.278(2)(d) limitation does not apply in rating the left forearm (wrist). See Mosier, 61 Van Natta at 2028 n 4.
On the other hand, all three factors are satisfied regarding claimant's "right wrist posttraumatic arthritis." Dr. Harris measured decreased ROM and "chronic condition" limitations in the right forearm/wrist, as well as loss of sensation in the right index and middle fingers. These impairment findings qualify for an impairment rating. Moreover, claimant's "post-aggravation rights" new/omitted medical condition ("right wrist posttraumatic arthritis") involve the same "injured body parts" (right forearm/wrist/hand/fingers) that were the bases of his previous scheduled PPD award. See Robert G. Huard, 65 Van Natta 399 (2013) (ORS 656.278(2)(d) limitation applied where the current hand impairment involved the same "injured body part" (left arm/hand) that was the basis for the prior award).
Claimant's claims were closed by March 2013 Own Motion Notices of Closure. Thus, the applicable standards are found in WCD Admin. Order 12-061 (eff. January 1, 2013). See OAR 436-035-0003(1).
Unscheduled PPD
Where, as here, a medical arbiter is used, impairment is established based on the medical arbiter's findings, except where a preponderance of the medical evidence demonstrates that different findings by the attending physician, or impairment findings with which the attending physician has concurred, are more accurate and should be used. OAR 436-035-0007(5); SAIF v. Owens, 247 Or App 402, 414-15 (2011), recons, 248 Or App 746 (2012). Only findings of impairment that are permanent and caused by the accepted compensable condition may be used to rate impairment. OAR 436-035-0007(1); Khrul v. Foremans Cleaners, 194 Or App 125, 130 (1994).
When we have expressly rejected other medical evidence concerning impairment and are left with only the medical arbiter's opinion that unambiguously attributes the claimant's permanent impairment to the compensable condition, "the medical arbiter's report provides the default determination of a claimant's impairment." Hicks v. SAIF, 194 Or App 655, adh'd to as modified on recons, 196 Or App 146,152 (2004). However, where the attending physician has provided an opinion of impairment and we do not expressly reject that opinion, OAR 436-035-0007(5) permits us to prefer the attending physician's impairment findings, if the preponderance of the medical evidence establishes that they are more accurate. SAIF v. Banderas, 252 Or App 136, 144-45 (2012).
Here, Dr. Dodson, the medical arbiter for claimant's psychiatric "post-aggravation rights" new/omitted medical conditions ("pain disorder (psychiatric diagnosis/consequential condition)," and "depression"), discussed several concerns about claimant's psychiatric condition/presentation. He especially considered symptom fabrication, noting that it can be intentional to maintain the "sick role" or for purposes of secondary gain (such as financial benefit). After considering six separate factors in claimant's presentation that supported symptom fabrication, Dr. Dodson opined that it was "very possible" that he was intentionally producing psychiatric symptoms for both "secondary gain" and "to maintain a sick role for reasons related to his personality." Nevertheless, Dr. Dodson also stated that the extent of claimant's surgical treatment would be unusual in someone who was fabricating symptoms solely for secondary gain.
In addition, Dr. Dodson opined that if claimant was fabricating symptoms, "most of them are related to an underlying personality disorder." Finally, Dr. Dodson stated that "[b]ased on the combination of [the] above factors which include observable symptoms of depression [claimant] has a class 2 mild permanent impairment," noting that claimant continued "to need treatment for legitimate psychological issues related to the workplace injury but the extent of his psychological symptomatology may be exaggerated."
Dr. Dodson's report is ambiguous. Although Dr. Dodson provided impairment findings, he also questioned whether such findings were valid or permanent (versus being the product of symptom fabrication or exaggeration). He also questioned whether such findings were caused by the newly accepted psychiatric conditions (versus being caused by an underlying personality disorder, exaggeration, or symptom fabrication).
Under such circumstances, we find that Dr. Dodson's ambiguous report is not sufficient to establish that claimant had impairment findings that are permanent and caused by the accepted compensable condition. See OAR 436-035-0007(1); Khrul, 194 Or App at 130. Therefore, we do not apply Dr. Dodson's impairment findings to rate claimant's psychiatric "post-aggravation rights" new/omitted medical conditions ("pain disorder (psychiatric diagnosis/consequential condition)," and "depression"). See Khrul, 194 Or App at 131 (although in the absence of other medical opinion, the Board is required to use a medical arbiter's rating of impairment, it must nonetheless be satisfied that the report rates impairment caused by the compensable condition); John C. Fowler, 61 Van Natta 2218, 2221-22 (2009) (declining to rely on medical arbiter's report that contained ambiguities as to whether the impairment findings were due to the compensable conditions).
In contrast, Dr. Blake, claimant's attending physician at the time of claim closure, concurred with Dr. Hicks's findings that it was "medically probable" that claimant was without permanent impairment for the depression and pain disorder conditions. (Exs. 249-14, 252). Under these particular circumstances, we conclude that a preponderance of the medical evidence establishes that the different findings, with which claimant's attending physician concurred, are more accurate than the ambiguous findings of the medical arbiter and should be used to rate claimant's impairment. Therefore, we find persuasive evidence to disregard the medical arbiter's findings. See OAR 436-035-0007(5); Khrul, 194 Or App at 131; Fowler, 61 Van Natta at 2222.
Accordingly, we rate claimant's permanent psychiatric impairment based on Dr. Heck's findings, with which Dr. Blake concurred. As noted above, Dr. Blake concurred that it was "medically probable" that claimant had no permanent impairment due to the newly accepted depression and pain disorder conditions. (Exs. 249-14, 252). Therefore, claimant is not entitled to an award of unscheduled PPD for his accepted psychiatric conditions. See OAR 436-035-0007(7) (if there is no measurable impairment under the standards, no award of PPD is allowed); OAR 436-035-0400(5)(a); Victor J. Tynes, 65 Van Natta 744, 748 (2013) (where the claimant had not suffered permanent mental/brain impairment related to his accepted conditions, he was not entitled to an award of unscheduled PPD).
Dr. Blake also agreed that it was "possible" that claimant might be rated as having a Class 2 minimal permanent impairment because of his chronic suicidal ideation and apportioned that impairment among several factors. (Exs. 249-15, 252). However, that opinion was couched in terms of medical possibility rather than medical probability, which is not sufficient to establish that claimant has permanent impairment due to the accepted psychiatric "post-aggravation rights" new/omitted medical conditions ("pain disorder (psychiatric diagnosis/consequential condition)," and "depression"). See Gormley v. SAIF, 52 Or App 1055 (1981) (opinions in terms of medical possibility rather than medical probability are not persuasive); George M. Strawn, 58 Van Natta 200, 202 (2006) (possibility of permanent impairment due to accepted condition not sufficient).
Scheduled PPD - Left Forearm (Wrist)
The parties do not dispute that the findings of Dr. Harris, the medical arbiter for claimant's physical conditions, should be used to rate claimant's permanent impairment. Additionally, Dr. Harris performed a thorough and complete examination regarding claimant's physical "post-aggravation rights" new/omitted medical conditions ("right wrist posttraumatic arthritis and left carpal tunnel syndrome"). Because a preponderance of the medical evidence does not demonstrate that the attending physician's findings are more accurate, we rely on Dr. Harris's findings to rate claimant's permanent impairment for those physical conditions. OAR 436-035-0007(5); Owens, 247 Or App at 414-15.
Dr. Harris found the following right/left wrist ROM: 0/70 degrees dorsiflexion; 0/78 degrees palmar flexion; 0/30 degrees radial deviation; 0/40 degrees ulnar deviation. Because claimant has a history of injury or disease in the contralateral joint, the findings of the injured joint are valued based on the values established under the standards. OAR 436-035-0011(3)(b). Therefore, claimant receives the following left wrist ROM impairment values: zero percent for dorsiflexion; zero percent for palmar flexion; zero percent for radial deviation; zero percent for ulnar deviation. OAR 436-035-0080(1), (3), (5), (7). Thus, claimant receives no ROM impairment value.
Dr. Harris opined that claimant did not have "chronic condition" impairment regarding his left wrist and did not indicate any other impairment due to the "left carpal tunnel syndrome." Finally, although claimant underwent surgery (left carpal tunnel release), the standards do not provide an impairment value for that surgery. OAR 436-035-0007(13)(a) (not all surgical procedures receive a value under the standards); OAR 436-035-0110(5)(b).
Under such circumstances, claimant is not entitled to an award of scheduled PPD for loss of use or function of the left forearm (wrist). See OAR 436-035-0007(7) (if there is no measurable impairment under the standards, no award of PPD is allowed).
Scheduled PPD - Right Forearm (Wrist)/Hand
Because there are impairment findings in two or more body parts in claimant's right upper extremity, the total impairment findings in the distal body part are converted to a value in the most proximal body part prior to combining impairment values for the most proximal body part. OAR 436-035-0011(5); Frederick S. Hawkins, 62 Van Natta 1988, 1991 (2010). Therefore, we first determine the impairment value for claimant's right index and middle fingers.
"The thumb and fingers begin at the joints between the metacarpal bones and the phalanges. They extend to the tips of the thumb and fingers, respectively." OAR 436-035-0020(4).
Dr. Harris found Grade 2 ("less than normal") two-point discrimination on the palmar surface of claimant's right index and middle fingers. Therefore, claimant receives a 25 percent impairment value for "less than normal" sensation in the index finger, and a 25 percent impairment value for "less than normal" sensation in the middle finger. OAR 436-035-0110(l)(d).
Because claimant has loss of use in two or more digits, and because he has impairment findings in two or more body parts of his right forearm (wrist)/hand, we convert the index and middle finger impairment values to a value for the loss in the hand. OAR 436-035-0011(5); OAR 436-035-0070(1); Kip G. Carty, 63 Van Natta 473, 485 (2011). 25 percent of the index finger equals 4 percent of the hand. OAR 436-035-0070(4). 25 percent of the middle finger equals 4 percent of the hand. OAR 436-035-0070(5).
Under OAR 436-035-0070(2), the converted digit-to-hand values are added for a total converted hand value. Therefore, we add 4 percent (converted index finger) and 4 percent (converted middle finger), for a total impairment value of 8 percent for right hand loss of sensation.
We next determine claimant's right forearm/wrist impairment. Claimant's right wrist was fused at 30 degrees of dorsiflexion (ankylosis at 30 degrees). Therefore, he receives a 25 percent impairment value for right wrist ROM. OAR 436-035-0080(2). Because claimant's right wrist joint is ankylosed in all planes of motion, this value is granted in lieu of all other ROM or ankylosis values for the wrist joint. OAR 436-035-0011(10); Allen L. Dendy, 65 Van Natta 2042 (2013).
"Ankylosis" means a bony fusion, fibrous union, or arthrodesis of a joint. Ankylosis does not include pseudo arthrosis or articular arthropathies. OAR 436-035-0005(2).
Claimant underwent fusions of the scaphoid, lunate, and capitate bones. Each carpal bone fusion receives a 5 percent impairment value, which are added for a total value of 15 percent. OAR 436-035-0110(5)(b).
Dr. Harris opined that claimant was significantly limited in the repetitive use of his right wrist due to the accepted conditions. Therefore, he receives a 5 percent impairment value for a right wrist "chronic condition" limitation. OAR 436-035-0019(l)(c).
There are no other ratable right forearm/hand impairment findings. We combine claimant's impairment values as follows: 25 percent (ROM) combined with 15 percent (carpal bone fusions) equals 36 percent; 36 percent combined with 8 percent (converted digit value) equals 41 percent; 41 percent combined with 5 percent (chronic condition) results in a total impairment value of 44 percent for the right forearm/hand. OAR 436-035-0011(5), (6); OAR 436-035-0019(2).
As discussed above, claimant has received a prior award of 18 percent (27 degrees) scheduled PPD for the right forearm. Because the limitation in ORS 656.278(2)(d) applies, claimant is entitled to additional PPD "only to the extent that the [PPD] rating exceeds the [PPD] rated by the prior award or awards." ORS 656.278(2)(d). In this instance, claimant's prior 18 percent (27 degrees) scheduled PPD award is less than his current 44 percent (66 degrees) scheduled PPD, which leaves a remainder of 26 percent (39 degrees). The March 2013 Notices of Closure awarded an additional 21 percent (31.5 degrees) scheduled PPD for the right forearm. Accordingly, we modify the Notices of Closure to award an additional 5 percent (7.5 degrees) scheduled PPD for loss of use or function of the right forearm (wrist).
Claimant's total award to date is 44 percent (66 degrees) scheduled PPD for loss of use or function of the right forearm (wrist).
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Because our decision results in increased PPD, claimant's counsel is awarded an "out-of-compensation" attorney fee equal to 25 percent of the increased PPD compensation created by this order (the 5 percent (7.5 degrees) scheduled PPD award granted by this order), not to exceed $4,600, payable directly to claimant's counsel. ORS 656.386(4); OAR 438-015-0040(1); OAR 438-015-0080(3).
IT IS SO ORDERED.
Entered at Salem, Oregon on February 26, 2014