In the Matter of Compensation of Owens

273 P.3d 376 (2012) 248 Or. App. 746

In the Matter of the Compensation of Floyd A. Owens, Claimant.
SAIF CORPORATION and Swanson Group MFG LLG, Petitioners,
v.
Floyd A. OWENS, Respondent.

0807105; A145552.

Court of Appeals of Oregon.

On Petitioners' Petition for Reconsideration January 12, 2012. Decided March 14, 2012.

Julie Masters, Appellate Counsel, for petition.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

PER CURIAM.

In our original opinion in this case, we held that, in applying the "preponderance of the medical evidence" standard of ORS 656.726(4)(f)(B) to determine a claimant's impairment rating, "the entire universe of medical evidence that may be considered consists of the medical arbiter's report, * * * the opinion of the attending physician, * * * and any physicians' report in which the attending physician concurs." SAIF v. Owens, 247 Or. App. 402, 409, 270 P.3d 343 (2011). We explicitly rejected SAIF's contention that the pertinent statutes merely limit the physicians who may provide impairment findings, but do not otherwise limit the medical evidence that may be considered in determining a claimant's impairment. SAIF contends that we were wrong in so narrowing the scope of the record that may be considered for purposes of rating impairment and that, even if other physicians' findings of impairment may not be considered, other physicians' opinions may be considered in evaluating the findings of those who are authorized by statute to make findings. SAIF has not presented any argument in its petition that leads us to conclude that we were incorrect in our conclusion that no additional medical evidence may be considered, even if only for the purpose of evaluating the attending physician's findings of impairment.

SAIF also contends that our original opinion failed to make clear that our holding related only to the evidence that may be considered for purposes of rating impairment and erroneously suggested that additional evidence should not be a part of the record. See 247 Or.App. at 407, 270 P.3d 343. SAIF is correct. Our opinion relates only to the extent to which other medical evidence may be considered for purposes of rating impairment and should not be understood to require exclusion of any evidence from the record.

Reconsideration allowed; former opinion clarified and adhered to as clarified.