- Court: Oregon Court of Appeals
- Area(s) of Law: Workers Compensation
- Date Filed: 06-28-2017
- Case #: A160016
- Judge(s)/Court Below: Sercombe, J. for the Court; Hadlock, C.J.; Armstrong, J.; Ortega, J.; Duncan, J.; Egan, J.; DeVore, J.; Lagesen, J.; Tookey, J.; Garrett, J.; DeHoog, J.; Shorr, J.; & Flynn, J. pro tempore, dissenting.
Claimant sought review of an order of the Workers’ Compensation Board (“Board”) upholding SAIF’s award of permanent partial disability benefits. The award apportioned Claimant’s benefits under OAR 436-035-0013 to exclude compensation for his preexisting condition. Claimant assigned error to the Board’s conclusion that SAIF’s apportioned award was appropriate. On appeal, Claimant argued that under ORS 656.268(1), as interpreted by the Supreme Court in Schleiss v. SAIF, apportionment to exclude an award for impairment due to a preexisting condition is permitted only when the preexisting condition has been accepted as a part of a combined condition claim, then denied. SAIF argued the Board correctly upheld the award under ORS 656.214 and OAR Chapter 436, division 35. The Court of Appeals concluded apportionment is not limited to combined condition claims because the Schleiss court held apportionment upon the rating of impairment under ORS 656.214 is limited to “legally cognizable preexisting conditions,” as defined in 656.005(24). The Court of Appeals further concluded the text and context of ORS 656.268(1)(b) show it does not preclude the apportionment of impairment due to a compensable industrial injury from the loss caused by a preexisting condition. Therefore, the Board did not err in upholding SAIF’s apportioned award of benefits. Affirmed.