Schleiss v. SAIF Corp. , 354 Or. 637 ( 2013 )

No. 66 December 27, 2013 637
66
Schleiss v. SAIF 354 Or
December 27, 2013
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of the Compensation of
Jon M. Schleiss, Claimant.
Jon M. SCHLEISS,
Petitioner on Review,
v.
SAIF CORPORATION
and Nugent Masonry, Inc.,
Respondents on Review,
and
DEPARTMENT OF CONSUMER
AND BUSINESS SERVICES,
Intervenor.
(WCB 0905174; CA A146996; SC S060774)
On review from the Court of Appeals.*
Argued and submitted September 16, 2013.
Donald M. Hooton, Hooton Wold & Okrent, LLP,
Beaverton, argued the cause and filed the brief for petitioner
on review.
Julie Masters, SAIF Corporation, Salem, argued the
cause and filed the brief for respondents on review SAIF
Corporation and Nuent Masonry Inc.
Michael A. Casper, Deputy Solicitor General, Salem,
argued the cause for Intervenor Department of Consumer
and Business Services. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
General.
Julene M. Quinn, Corvallis, and James S. Coon, Swanson
Thomas Coon & Newton, Portland, filed a brief on behalf of
amicus curiae Oregon Trial Lawyers Association.
______________
*  Judicial review from Workers’ Compensation Board. 250 Or App 458, 281
P3d 626 (2012).
638 Schleiss v. SAIF
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer and Baldwin, Justices.**
BREWER, J.
The decision of the Court of Appeals is reversed, and the
case is remanded to the Workers’ Compensation Board for
further proceedings.
Claimant appeals from a decision of the Court of Appeals affirming an order of
the Workers’ Compensation Board (Board) awarding claimant permanent partial
disability (PPD). The Board awarded claimant five-percent PPD based on a med-
ical arbiter’s finding that the majority of his impairment was caused by a preex-
isting mild degenerative condition and accelerated aging caused by his smoking.
Claimant appealed to the Court of Appeals, arguing that the Board’s order was
erroneous because the rule the Board relied on, OAR 436-035-0013, conflicted
with the controlling statute, ORS 656.214, because it allowed for apportionment
of his PPD award and such apportionment was only appropriate in combined-
condition claims under ORS 656.268(1)(b), and then only where legally cognizable
preexisting conditions were present. The Court of Appeals affirmed the Board’s
order. Held: OAR 436-035-0013 is inconsistent with ORS 656.214 because that
statute requires an award for impairment “due to” a compensable injury and does
not provide for apportionment of that award based on other contributing causes
that are not legally cognizable.
The decision of the Court of Appeals is reversed, and the case is remanded to
the Workers’ Compensation Board for further proceedings.
______________
**  Linder, J., did not participate in the consideration or decision of this case.
Cite as 354 Or 637 (2013) 639
BREWER, J.
Our review of an order of the Workers’ Compensation
Board (the board) that made a permanent partial disability
(PPD) award to claimant requires us to determine whether
OAR 436-035-0013 (2009), an administrative rule adopted
by the Director of the Department of Consumer and Business
Services (DCBS), is inconsistent with the statutes that the
Director intended to implement. We review to determine
whether the board has erroneously interpreted a provision
of law. ORS 183.482(8)(a)(B). For the reasons that follow, we
reverse the decision of the Court of Appeals, and we remand
this case to the board for further proceedings.
We take the material facts, in condensed form,
from the Court of Appeals’ opinion. Schleiss v. SAIF, 250 Or
App 458, 459, 281 P3d 626 (2012). Claimant compensably
injured his low back while at work in April 2008, and SAIF
accepted his ensuing claim for a lumbar strain. Claimant
was taken off work after his injury and, during the next
several months, received an extensive course of chiropractic
care before being referred to Dr. Jeffrey Gerry. After exam-
ining claimant in late 2008, Gerry opined that claimant had
“some symptoms suggestive of lumbar radiculopathy,” and
he referred claimant for a lumbar MRI. In February 2009,
Gerry reviewed the results of claimant’s MRI and reported
that “[t]here were no significant abnormalities noted.” Gerry
declared claimant medically stationary and released him to
regular work without restriction. Based on Gerry’s findings,
SAIF issued a notice of closure that did not award PPD ben-
efits to claimant.
Claimant requested reconsideration and the appoint-
ment of a medical arbiter, based on his disagreement “with
the impairment findings used to determine and rate per-
manent disability.” During a medical arbiter examination
in July 2009, claimant reported that he had attempted to
return to regular work in early March, but his back pain
had recurred. Claimant also reported that he had been
employed since that March attempt, but not in his regular
work. After examining claimant, the arbiter opined that
claimant “has some limitation in his ability to use the spinal
area. I would classify it as moderate. He cannot lift over 50
640 Schleiss v. SAIF
pounds and needs to avoid recurrent bending and twisting.”
The arbiter also stated that he “would attribute [claimant’s
impairment] findings mainly to the off the job factor”:
“This is based on the fact that his MRI demonstrates only
mild degenerative changes at L1-2 and L4-5. He however
does smoke and this contributes to an acceleration of the
aging process. Based on the evaluation I would rate 33% of
the problem secondary to his on-the-job and 67% secondary
to his pre-existing mild DJD and long history of smoking.”
Relying on the medical arbiter’s impairment find-
ings, the Appellate Review Unit (ARU) of DCBS issued an
order on reconsideration that awarded claimant PPD based
on five percent whole-person impairment and no work dis-
ability. Among other things, the order on reconsideration
concluded that, because only the portion of impairment
findings that were “due to” claimant’s compensable injury
receive a value under OAR 436-035-0013, his “value for loss
of range of motion,” 13.8 percent, was apportioned at 33 per-
cent, for an impairment value of 4.55 percent.1
In reaching that conclusion, the ARU relied on OAR
436-035-0013(1), which provides:
“The physician describes the current total overall find-
ings of impairment, then describes those findings that are
due to the compensable condition. In cases where a phy-
sician determines a specific finding (e.g. range of motion,
strength, instability, etc.) is partially attributable to the
accepted condition, only the portion of those impairment
findings that is due to the compensable condition receives
a value. When apportioning impairment findings, the phy-
sician must identify any applicable superimposed or unre-
lated conditions.”
That rule is intended to implement the Director’s author-
ity under two statutes. The first statute, ORS 656.726(4)(f)
(A), calls for the director to establish PPD standards and
criteria based on “the loss of use or function of a body part
*  * due to the compensable industrial injury.” The second
*
statute, ORS 656.214, which authorizes awards of PPD, pro-
vides, in part, that,
1
That figure was rounded up to 5 percent under applicable DCBS rules.
Cite as 354 Or 637 (2013) 641
“(1)(a)  ‘Impairment’ means the loss of use or function
of a body part or system due to the compensable industrial
injury or occupational disease determined in accordance
with the standards provided under ORS 656.726, expressed
as a percentage of the whole person.”
After the ARU issued its order on reconsideration,
claimant requested a hearing before an administrative law
judge (ALJ). Among other arguments, claimant contended
that the workers’ compensation statutes provide that “appor-
tionment is appropriate only in the context of an accepted
combined condition,” and that, because no qualifying com-
bined condition existed in this case, claimant was “entitled
to an award for all of his impairment as long as it was caused
in part by his accepted condition.”
The ALJ affirmed the reconsideration order, and the
board affirmed the ALJ’s order. On judicial review before the
Court of Appeals, claimant renewed his arguments before
the board; in particular, claimant asserted that OAR 436-
035-0013(1) is inconsistent with both the applicable statutes
and this court’s decision in Barrett v. D & H Drywall, 300 Or
325, 709 P2d 1083 (1985), on recons 300 Or 553, 715 P2d 90
(1986).
The Court of Appeals affirmed. As pertinent here,
the court reasoned that,
“[b]oth ORS 656.214(1)(a) and ORS 656.726(4)(f)(A) con-
template that PPD impairment benefits will be awarded
only for impairment that is ‘due to’ the compensable con-
dition. OAR 436-035-0013 implements those statutes by
describing the way in which overall findings of impairment
will be apportioned between those ‘[impairment] findings
that are due to the compensable condition’ and those that
are not. Put another way, the rule sets out the specific
method for implementing the legislature’s express intent
that workers receive PPD benefits only for impairment ‘due
to’ compensable conditions.
“* * * * *
“[W]here a physician determines that an injured worker’s
impairment is due partly to a previously undiagnosed non-
compensable condition—and the physician does not find that
the noncompensable condition was worsened or rendered
symptomatic by the compensable injury—apportionment is
642 Schleiss v. SAIF
appropriate. OAR 436-035-0013 (2009) is consistent with
those principles, it does not conflict with Barrett I or Barrett II
and the DCBS director did not lack statutory authority to
adopt that rule.”
Schleiss, 250 Or App at 464-66.
The statutory phrase “due to” is an inexact term—
that is, neither a term so precise that no interpretation is
necessary nor a term (such as “good cause”) indicating that
the legislature intended to delegate the determination of its
meaning to an agency charged with implementing the stat-
ute. See Springfield Education Assn. v. School Dist., 290 Or
217, 223, 621 P2d 547 (1980) (summarizing the categorization
of statutory terms). Accordingly, the Director’s construction
of the statutory term in his rule is not entitled to deference
on review. Id. at 224, 229. In effect, then, the ultimate issue
before us is whether the Court of Appeals’ construction of
ORS 656.214 is correct. If it is, then the Director’s rule is con-
sistent with the meaning of the statute; if not, then the rule
is inconsistent with the statute, and the board’s order in this
case is erroneous. In conducting that inquiry, we employ our
method of statutory construction set out in State v. Gaines,
346 Or 160, 171-72, 206 P3d 1042 (2009), to ascertain the
legislature’s intent. See also State v. Klein, 352 Or 302, 309,
283 P3d 350 (2012) (when construing statutes, court reviews
statutory text and context, including related statutes).
ORS 656.214 provides, in part:
“(1)  As used in this section:
“(a)  ‘Impairment’ means the loss of use or function of
a body part or system due to the compensable industrial
injury or occupational disease determined in accordance
with the standards provided under ORS 656.726, expressed
as a percentage of the whole person.
“* * * * *
“(c)  ‘Permanent partial disability’ means:
“(A)  Permanent impairment resulting from the com-
pensable industrial injury or occupational disease; or
“(B)  Permanent impairment and work disability result-
ing from the compensable industrial injury or occupational
disease.
Cite as 354 Or 637 (2013) 643
In defining “impairment” in ORS 656.214(1)(a), the
legislature used the term “due to” to describe the necessary
causal relationship between a compensable injury and the
loss of use or function of a body part or system. Claimant
asserts that, for purposes of an award under ORS 656.214,
“due to” means “caused in material part by,” so that, if the
compensable injury materially contributed to the total
impairment, all the impairment is “due to” the compensa-
ble injury. SAIF, on the other hand, asserts that the phrase
refers to the percentage of the worker’s total impairment
that was caused by the compensable injury, so that the per-
centage of the total impairment “due to” any other contrib-
uting cause must be excluded from an award.
On the surface of things, either of those proposed
meanings is plausible. The dictionary meaning of “due to”
is “because of.” Webster’s Third New Int’l Dictionary 699
(unabridged ed 2002). Consistently with that meaning, as
claimant asserts, “due to” could mean that a compensable
injury must have materially contributed to a worker’s total
impairment; alternatively, as SAIF contends, “due to” could
refer instead to the percentage of a worker’s total impair-
ment to which the compensable injury contributed. The res-
olution of the parties’ dispute therefore requires a detailed
examination of the pertinent statutory framework in an
effort to discern the meaning of the term in its context.
The standard for determining the compensability
of an injury is an appropriate point of departure. ORS
656.005(7)(a) provides, in part, that a “compensable injury”
is “an accidental injury, * * * arising out of and in the course
of employment requiring medical services or resulting in
disability or death.” This court has construed the phrase
“arising out of” to mean that a workplace injury must be
a material contributing cause of disability or the need for
medical treatment in order to be compensable. Olson v. State
Ind. Acc. Com., 222 Or 407, 414, 352 P2d 1096 (1960). In
Olson the court stated:
“Reduced to its simplest form[,] ‘arising out of’ as used
in the act means the work or labor being performed was
a causal factor in producing the injury suffered by the
[worker]. It need not be the sole cause, but is sufficient if
644 Schleiss v. SAIF
the labor being performed in the employment is a material,
contributing cause which leads to the unfortunate result.”
Id. at 414-15 (internal citations omitted). That standard is
still recognized by this court as the test for establishing the
existence of a compensable injury under ORS 656.005(7)(a).
Hopkins v. SAIF, 349 Or 348, 351, 245 P3d 90 (2010).
The material contributing cause standard does
not govern the compensability of all conditions, however.
In 1990, the legislature amended ORS 656.005(7)(a) to
include subsections (A) and (B), pertaining to consequential
and combined conditions respectively, and to which a major
contributing cause standard applies. A major contributing
cause is one that “contributes more to the injury for which
the worker seeks compensation than all other causes com-
bined, or most of the cause.” Smothers v. Gresham Transfer,
Inc., 332 Or 83, 133-34, 23 P3d 333 (2001).2
ORS 656.005(7)(a) (A) and (B) provide:
“(A)  No injury or disease is compensable as a conse-
quence of a compensable injury unless the compensable
injury is the major contributing cause of the consequential
condition.
“(B)  If an otherwise compensable injury combines at
any time with a preexisting condition to cause or prolong
disability or a need for treatment, the combined condition
is compensable only if, so long as and to the extent that
the otherwise compensable injury is the major contribut-
ing cause of the disability of the combined condition or the
major contributing cause of the need for treatment of the
combined condition.”
ORS 656.005(24), in turn, defines the term “preexisting
condition”:
“(a)  ‘Preexisting condition’ means, for all industrial
injury claims, any injury, disease, congenital abnormality,
personality disorder or similar condition that contributes
to disability or need for treatment, provided that:
“(A)  Except for claims in which a preexisting condi-
tion is arthritis or an arthritic condition, the worker has
2
Similarly, a preexisting condition that is exacerbated by a work injury can
be compensable, but only if the work injury is the major contributing cause of a
“pathological worsening of the pre-existing condition.” ORS 656.225.
Cite as 354 Or 637 (2013) 645
been diagnosed with such condition, or has obtained medi-
cal services for the symptoms of the condition regardless of
diagnosis; and
“(B)(i)  In claims for an initial injury or omitted condi-
tion, the diagnosis or treatment precedes the initial injury;
“(ii)  In claims for a new medical condition, the diagnosis
or treatment precedes the onset of the new medical condi-
tion; or
“(iii)  In claims for a worsening pursuant to ORS
656.273 or 656.278, the diagnosis or treatment precedes
the onset of the worsened condition.”
In addition to enacting ORS 656.005(7)(a)(A) and
(B), in 1990 the legislature amended ORS 656.262(6)(b) to
require that a notice of acceptance must “specify what condi-
tions are compensable.” And, in the same session, the legis-
lature enacted ORS 656.262(6)(c) and (7)(b), which provide:
“(6)(c)  An insurer’s or self-insured employer’s accep-
tance of a combined or consequential condition under ORS
656.005(7), whether voluntary or as a result of a judgment
or order, shall not preclude the insurer or self-insured
employer from later denying the combined or consequential
condition if the otherwise compensable injury ceases to be
the major contributing cause of the combined or consequen-
tial condition.
“* * * * *
“(7)(b)  Once a worker’s claim has been accepted, the
insurer or self-insured employer must issue a written
denial to the worker when the accepted injury is no longer
the major contributing cause of the worker’s combined con-
dition before the claim may be closed.”
After an injury is determined to be compensable,
benefits are payable under specific statutes, including tem-
porary disability to replace lost wages (ORS 656.210), medi-
cal services (ORS 656.245), permanent disability to compen-
sate for permanent loss of earning capacity (ORS 656.214),
and vocational services for retraining (ORS 656.340).
To reiterate, ORS 656.214, the benefit statute at
issue here, provides, in part:
“(1)  As used in this section:
646 Schleiss v. SAIF
“(a)  ‘Impairment’ means the loss of use or function of
a body part or system due to the compensable industrial
injury or occupational disease determined in accordance
with the standards provided under ORS 656.726, expressed
as a percentage of the whole person.
“* * * * *
“(c)  ‘Permanent partial disability’ means:
“(A)  Permanent impairment resulting from the com-
pensable industrial injury or occupational disease; or
“(B)  Permanent impairment and work disability result-
ing from the compensable industrial injury or occupational
disease.
“* * * * *
“(e)  ‘Work disability’ means impairment modified by
age, education and adaptability to perform a given job.
“* * * * *
“(3)  Impairment benefits awarded under subsection
(2)(a) of this section shall be expressed as a percentage of
the whole person.”
Thus, permanent disability includes two parts—“impairment”
and “work disability.” “Impairment” means the objective loss
of use or function of a body part “due to” the compensable
injury, expressed as a percentage of the whole person. ORS
656.214(1)(a); 656.726(4)(f)(A). “Work disability” means
impairment modified by age, education, and adaptability to
perform a given job. ORS 656.214(1)(e).
When a worker who has suffered a compensable
injury becomes medically stationary,3 the insurer closes the
claim and awards any applicable benefits. ORS 656.268(1)(a);
(5). If the worker objects to the notice of closure or the award,
the worker may request reconsideration. ORS 656.268(5)(c).
For purposes of reconsideration, the Director must appoint
a medical arbiter if the worker’s physical impairment is in
question. ORS 656.268(8). The claimant has the burden to
establish the nature and extent of any impairment that is
3
“Medically stationary” means that “no further material improvement
would reasonably be expected from medical treatment, or the passage of time.”
ORS 656.005(17).
Cite as 354 Or 637 (2013) 647
due to the compensable condition. ORS 656.266. Impairment
must be established by a preponderance of medical evidence
based upon objective findings. ORS 656.726(4)(f)(A) and (B).
Objective findings of impairment might include, for exam-
ple, measurable changes in the claimant’s range of motion
or muscle strength. ORS 656.005(19).
To fully frame the disability award analysis, ORS
656.268(1) provides:
“(1)  One purpose of this chapter is to restore the
injured worker as soon as possible and as near as possi-
ble to a condition of self support and maintenance as an
able-bodied worker. The insurer or self-insured employer
shall close the worker’s claim, as prescribed by the Director
of the Department of Consumer and Business Services, and
determine the extent of the worker’s permanent disability,
provided the worker is not enrolled and actively engaged in
training according to rules adopted by the director pursu-
ant to ORS 656.340 and 656.726, when:
“(a)  The worker has become medically stationary and
there is sufficient information to determine permanent dis-
ability; [or]
“(b)  The accepted injury is no longer the major contrib-
uting cause of the worker’s combined or consequential con-
dition or conditions pursuant to ORS 656.005 (7). When the
claim is closed because the accepted injury is no longer the
major contributing cause of the worker’s combined or con-
sequential condition or conditions, and there is sufficient
information to determine permanent disability, the likely
permanent disability that would have been due to the cur-
rent accepted condition shall be estimated.”
Thus, the legislature has generally authorized the Director to
“determine the extent of the worker’s permanent disability”
in either of two circumstances: (1) when the worker is medi-
cally stationary and there is sufficient information to deter-
mine permanent disability, ORS 656.268(1)(a); or (2) where
a combined condition exists, the compensable injury is no
longer the major cause of the disability and no longer the
major cause of any need for treatment, and there is suffi-
cient information to determine permanent disability. ORS
656.268(1)(b).
648 Schleiss v. SAIF
Where, under ORS 656.268(1)(a), a claimant’s com-
bined condition has become medically stationary and the
accepted injury remains the major contributing cause of the
claimant’s combined condition, the entire combined condi-
tion—that is, the effect of the work injury and the preexist-
ing condition—remains compensable. ORS 656.005(7)(a)(B).
And, because the combined condition makes up the compen-
sable injury under ORS 656.214(1)(c), the entire condition is
rated for impairment at claim closure. That is, because there
is no other legally cognizable cause whose contribution may
be considered, all the claimant’s impairment is “due to” the
compensable injury under ORS 656.214(1)(a). On the other
hand, where ORS 656.268(1)(b) applies, the legislature has
implicitly provided for an apportionment of causes contrib-
uting to a worker’s impairment, so that the impairment “due
to” the compensable injury is limited to the percentage of
the total impairment to which the injury contributed. ORS
656.005(7)(a)(B); ORS 656.214(1)(c); ORS 656.268(1)(b).
One additional contextual matter merits attention as
we clear the decks for analysis. Before the 1990 amendments
to ORS 656.005(7) were enacted, this court had addressed
the nature of the necessary causal relationship under ORS
656.214 between impairment and the causes contributing to
it. In Barrett, the claimant had an underlying asymptomatic
arthritic condition in his low back before he suffered a com-
pensable fall that caused back pain. Barrett I, 300 Or at 327.
The employer denied any liability for the arthritic condition
but accepted responsibility for the compensable injury. Id. In
considering whether the claimant also was entitled to bene-
fits for his arthritic condition under ORS 656.214(5) (1985),4
this court held that nothing in that statute precluded the
board from including impairment caused by the worker’s
arthritic condition in making a PPD award. Id. at 330. On
reconsideration, the court clarified that impairment “due to
the compensable injury” included impairment triggered by a
compensable injury that had caused a previously asympto-
matic condition to become symptomatic. Barrett v. D & H
Drywall, 300 Or 553, 555-56, 715 P2d 90 (1986) (Barrett II).
4
ORS 656.214(5) (1985) provided that the criterion for a rating of disability
for permanent partial disability “shall be the permanent loss of earning capacity
due to the compensable injury.”
Cite as 354 Or 637 (2013) 649
In such circumstances, the court explained, the “loss of
earning capacity is ‘due to’ the compensable injury, and the
statute requires an award of compensation therefor.” Id.The court emphasized, however, that its “decision [did] not
require any award of compensation” for a disease or result-
ing disability that existed before the compensable injury,
unless the compensable injury worsened or triggered symp-
toms of the underlying condition. Id.As noted, in deciding this case, the Court of Appeals
distinguished Barrett, observing that, here, there was no
evidence that claimant’s workplace injury had worsened,
or triggered symptoms from, the other causes that contrib-
uted to claimant’s impairment. Schleiss, 250 Or App at 466.
Although that distinction is apt, its significance here is lim-
ited, because claimant’s theory does not depend on proof of
a worsening or the triggering of symptoms of either of those
other contributing causes. Instead, as discussed below, he
asserts that those contributing causes are immaterial to the
proper legal analysis.
However, Barrett is of doubtful utility here for
another fundamental reason. When Barrett was decided in
1985, no statute addressed the role in PPD award determi-
nations of impairment that is attributable to a preexisting
condition that has combined with a compensable injury.
Thus, in Barrett I, this court specifically noted the lack of
any reference to preexisting conditions in ORS 656.214. 300
Or at 330. However, the court concluded that the legislature’s
failure to mention preexisting conditions was insufficient to
indicate that impairment caused by such conditions should
be excluded from PPD awards that are due to a compensable
injury; indeed, the court relied on the fact that no statute
prohibited the board from including impairment caused by
preexisting conditions in such an award. Id. However, the
workers’ compensation statutes now provide specific stan-
dards for determining how and when conditions that “com-
bine” workplace injuries with preexisting conditions are
compensable and how and when impairment caused by such
conditions can be apportioned. In light of those statutory
changes, impairment attributable to a legally cognizable
preexisting condition now must be apportioned in a PPD
650 Schleiss v. SAIF
award where a combined condition has been established,
and the compensable injury is no longer the major con-
tributing cause of the impairment or the need for medical
treatment. Therefore, irrespective of the holding in Barrett,
if claimant’s claim had been for a combined condition and,
at the time of closure, his compensable injury was no lon-
ger the major contributing cause of his impairment or need
for treatment, under the current statutory regime his PPD
award would be reduced by the contribution of any legally
cognizable preexisting condition. ORS 656.268(1)(b).
The preceding overview provides the necessary
context for our consideration of the administrative rule at
issue here. OAR 436-035-0013(1) prescribes a standard for
determining the extent of a worker’s impairment when the
impairment is attributable both to a compensable injury and
to some other contributing cause. As discussed, the rule pro-
vides as follows:
“The physician describes the current total overall find-
ings of impairment, then describes those findings that are
due to the compensable condition. In cases where a phy-
sician determines a specific finding (e.g. range of motion,
strength, instability, etc.) is partially attributable to the
accepted condition, only the portion of those impairment
findings that is due to the compensable condition receives
a value. When apportioning impairment findings, the phy-
sician must identify any applicable superimposed or unre-
lated conditions.”
Claimant challenges the validity of the second
sentence of that subsection, which provides that, “In cases
where a physician determines a specific finding (e.g., range
of motion, strength, instability, etc.) is partially attrib-
utable to the accepted condition, only the portion of those
impairment findings that is due to the compensable condi-
tion receives a value.” According to claimant, that part of
the rule circumvents the combined condition process, and it
reduces impairment that otherwise would be awarded with-
out apportionment. Therefore, claimant reasons, the rule is
invalid.
SAIF responds that, because a portion of a worker’s
impairment may be due to a compensable injury and another
Cite as 354 Or 637 (2013) 651
portion may be due to other contributing causes, apportion-
ment is an appropriate method for the director to imple-
ment the statutes as written. According to SAIF, if claimant
wished to have an impairment caused in part by a preex-
isting condition included in his PPD award, he should have
attempted to establish that his compensable injury was the
major contributing cause of his impairment in a combined
condition claim. In SAIF’s view, claimant had the burden of
asserting and proving such a claim, and he failed to do so.
See ORS 656.266.5
We conclude that it is unnecessary to resolve the
parties’ disagreement concerning the burdens of asserting
and proving a combined condition claim, because there is no
evidence in the record that either of the contributing causes
on which the medical arbiter and the board relied is a legally
cognizable preexisting condition that would authorize the
apportionment of claimant’s impairment in a combined con-
dition claim. And, as elaborated below, that conclusion is
central to our resolution of this case.
We begin with the board’s apportionment of claim-
ant’s impairment based on the accelerated aging effects of his
smoking history. Age must, by statute, be considered as part
of an injured worker’s “work disability” award: “work dis-
ability” determinations include as considerations a worker’s
“age, education and adaptability to perform a given job.”
ORS 656.214(1)(e). The premise, of course, is that an older
worker generally is less adaptable to other employment and,
therefore, is entitled to receive a higher disability award for
5
ORS 656.266 provides:
“(1)  The burden of proving that an injury or occupational disease is com-
pensable and of proving the nature and extent of any disability resulting
therefrom is upon the worker. The worker cannot carry the burden of proving
that an injury or occupational disease is compensable merely by disproving
other possible explanations of how the injury or disease occurred.
“(2) Notwithstanding subsection (1) of this section, for the purpose of
combined condition injury claims under ORS 656.005 (7)(a)(B) only:
“(a)  Once the worker establishes an otherwise compensable injury, the
employer shall bear the burden of proof to establish the otherwise compensa-
ble injury is not, or is no longer, the major contributing cause of the disability
of the combined condition or the major contributing cause of the need for
treatment of the combined condition.
“(b) Notwithstanding ORS 656.804, paragraph (a) of this subsection
does not apply to any occupational disease claim.”
652 Schleiss v. SAIF
the same injury than a younger worker. DCBS’s own rules
recognize that principle; under the director’s permanent dis-
ability administrative rules, injured workers over 40 years
old are entitled to receive an additional point that increases
the work disability portion of their permanent disability
awards. OAR 436-035-0012(1) and (2).
That premise is reinforced by the fact that, on
the record before us, claimant’s posited accelerated aging
would not qualify as a preexisting condition under ORS
656.005(24). For any condition other than arthritis or an
arthritic condition to so qualify, the worker must have “been
diagnosed with such condition, or ha[ve] obtained medical
services for the symptoms of the condition regardless of
diagnosis.” ORS 656.005(24)(a)(A). There is no evidence in
the record that accelerated aging is a diagnosable condition
or that, even if it is, claimant ever was diagnosed with it or
treated for its symptoms before he suffered the workplace
injury that SAIF accepted. Accordingly, claimant’s accel-
erated aging would not qualify as a preexisting condition
for purposes of a combined condition analysis under ORS
656.005(7).
The same is true of claimant’s “mild degenerative
condition.” Although claimant had post-injury evidence of
a preexisting degenerative disc condition, the record does
not establish the existence of any preexisting disability or
impairment due to that condition. Dr. Gerry, claimant’s
examining physician, concluded that claimant had some
indications of a radiculopathy, and he obtained an MRI.
However, Gerry found no significant abnormalities in the
MRI results. And the medical arbiter merely described that
contributing cause as “mild degenerative change.”
Again we note that, as with claimant’s accelerated
aging, there is no evidence that claimant was diagnosed with
any degenerative condition before he suffered his workplace
injury. Accordingly, that contributing cause could qualify as
a preexisting condition only if it amounted to “arthritis” or
an “arthritic condition” under ORS 656.005(24)(a)(A). We
addressed the meaning of those statutory terms in Hopkins.
We held that, as used in that statute, “arthritis” “mean[s]
the inflammation of one or more joints, due to infectious,
Cite as 354 Or 637 (2013) 653
metabolic, or constitutional causes, and resulting in break-
down, degeneration, or structural change.” 349 Or at 364.
We also concluded that, to establish the existence of a preex-
isting arthritic condition, an employer must adduce expert
testimony that the claimant suffers from “inflammation
of whatever joint or joints it contends are affected by the
arthritic condition.” Id. at 363.
In this case, there is no evidence that the mild degen-
erative condition that the medical arbiter identified included
any inflammation of claimant’s joints. In addition, there is
no evidence that, before his compensable injury occurred,
claimant had been diagnosed with, or treated for, arthri-
tis or an arthritic condition. It follows that there is no evi-
dence from which the board could determine that claimant’s
degenerative condition was a legally cognizable preexisting
condition for the purpose of a combined condition analysis.
Because claimant’s accelerated aging and mild
degenerative condition were not legally cognizable preex-
isting conditions, they also could not trigger the apportion-
ment of claimant’s impairment in a true combined condition
claim. As noted, ORS 656.266(2)(a) provides:
“(2)  Notwithstanding subsection (1) of this section,
for the purpose of combined condition injury claims under
ORS 656.005 (7)(a)(B) only:
“(a)  Once the worker establishes an otherwise com-
pensable injury, the employer shall bear the burden of proof
to establish the otherwise compensable injury is not, or is
no longer, the major contributing cause of the disability of
the combined condition or the major contributing cause of
the need for treatment of the combined condition.”
That provision does not require an analysis of what, in some
general sense, has caused an injured worker to become
impaired or need treatment. Rather, it requires identifica-
tion of the major cause of any disability or need for treat-
ment of the combined condition, suggesting that the board
should compare only the contributions of the component
parts of the combined condition. To confirm the point, ORS
656.262(6)(c) refers simply to whether the otherwise com-
pensable injury is the major contributing cause of the com-
bined condition itself. Thus, the legislature has equated the
654 Schleiss v. SAIF
contributing causes of disability—including impairment—
of a combined condition with the contributing causes of the
combined condition.
Accordingly, other contributing causes—such as
the accelerated aging effects of a long smoking history or a
mild degenerative condition—that are neither encompassed
within the compensable injury nor are legally cognizable
preexisting conditions, play no role in the impairment calcu-
lus of a combined condition claim. Yet, in applying OAR 436-
035-0013(1), the board treated claimant’s accelerated aging
and mild degenerative condition as contributing causes that,
in effect, combined to produce claimant’s impairment and
required its apportionment under ORS 656.214.
That treatment is inconsistent with the statutory
scheme, because it is illogical to conclude that the legislature
intended to authorize the apportionment of an injured worker’s
impairment based on the contribution of such a cause.
That is so because, if that were the legislature’s intent, any
preexisting contributing cause would have to qualify for
apportionment under ORS 656.214, even where—because
a compensable injury was the major contributing cause of
the impairment—a statutorily cognizable preexisting con-
dition would not so qualify. It defies reason to believe that,
for purposes of apportionment of a worker’s impairment,
the legislature would afford such preferential treatment to
a preexisting contributing cause that would not be legally
cognizable in a combined condition claim. To the contrary,
if a preexisting contributing cause would not qualify to
reduce the impairment that is “due to” a compensable com-
bined condition under ORS 656.268(1)(b), it makes no sense
to conclude that such a cause would qualify to reduce the
impairment that is “due to” a claimant’s compensable injury
under ORS 656.214.6
There is no indication that the legislature intended
the phrase “due to” in ORS 656.214 to have a different mean-
ing than in ORS 656.268. In both statutes, depending on
6
We deliberately refer to a preexisting contributing cause in making this
point. This case does not present an occasion to decide whether—or under what
circumstances—a contributing cause arising after a compensable injury would be
legally cognizable for purposes of apportioning impairment under ORS 656.214.
Cite as 354 Or 637 (2013) 655
the circumstances, the phrase could require the apportion-
ment of a worker’s impairment based on contributing causes
that are unrelated to the compensable injury. However, to
qualify for the apportionment of impairment, a cause must
be legally cognizable. In this case, apart from the compen-
sable injury, there are no other legally cognizable contrib-
uting causes that claimant’s impairment is “due to” under
either statute. It follows that all of claimant’s impairment
is “due to” the compensable injury for purposes of making
a PPD award under ORS 656.214. The board nevertheless
treated claimant’s preexisting accelerated aging and mild
degenerative changes as contributing causes for purposes of
apportioning his impairment. Because the board’s order was
based on the Director’s rule, it is erroneous.7 ORS 183.482(8)
(a)(B).
The decision of the Court of Appeals is reversed, and
the case is remanded to the Workers’ Compensation Board
for further proceedings.
7
We note in passing that SAIF argues for the first time before this court
that claimant failed to exhaust his administrative remedies because he did not
establish that his impairment was due to his compensable injury rather than
“his preexisting mild [degenerative joint disease] and long history of smoking.”
As explained above, because those contributing causes cannot be considered in
rating claimant’s impairment, they do not support SAIF’s exhaustion argument.