Current through Register Vol. 63, No. 3, March 1, 2024
(1)
Eligibility for impairment.
(a)
Eligibility, generally. A worker is eligible for an award for
impairment if:
(A) The worker suffers
permanent loss of use or function of a body part or system;
(B) The loss is established by a
preponderance of medical evidence based upon objective findings of impairment;
and
(C) The loss is due to the
compensable injury.
(b)
Apportionment. A worker's award for impairment is limited to the
amount of impairment caused by the compensable injury subject to the following:
(A) If the loss of use or function of a body
part or system is entirely caused by the compensable injury, the worker is
eligible for the full award provided for the loss under the rating standards in
this division of rules.
(B) If the
loss of use or function of a body part or system is partly caused by the
compensable injury, the following provisions apply:
(i) The worker is eligible for an award for
impairment for:
(I) The portion of the loss
due to the compensable injury;
(II)
The portion of the loss caused by a condition that does not qualify as a
pre-existing condition but that existed before the initial injury in an initial
injury or omitted condition claim, before the onset of the accepted new medical
condition in a new condition claim, or before the onset of the accepted
worsened condition in an aggravation claim; and
(III) The portion of the loss caused by a
condition that qualifies as a pre-existing condition, but is not part of a
denial of a combined condition.
(ii) The worker is not eligible for an award
for impairment for the portion of the loss caused by:
(I) A superimposed condition;
(II) A pre-existing condition, as defined by
OAR 436-035-0005(11) and ORS
656.005(24), if
the pre-existing condition was accepted as part of a combined condition and
there is a subsequent denial of the combined condition, unless the pre-existing
condition is otherwise compensable under ORS
656.225; or
(III) A combined condition denied in its
entirety.
(C)
If the loss of use or function of a body part or system is not caused in any
part by the compensable injury, the loss is not due to the compensable injury
and the worker is not eligible for an award for impairment.
(2)
Eligibility
for work disability. An award for impairment is modified by the factors
of age, education, and adaptability if the worker is eligible for an award for
work disability. A worker is eligible for an award for work disability if:
(a) The worker is eligible for an award for
impairment;
(b) An attending
physician or authorized nurse practitioner has not released the worker to the
job held at the time of injury;
(c)
The worker has not returned to the job held at the time of injury;
and
(d) The worker is unable to
return to the job held at the time of injury because the worker has a permanent
work restriction that is caused in any part by the compensable
injury.
(3) When a new or
omitted medical condition has been accepted since the last arrangement of
compensation, the extent of permanent disability must be redetermined.
(a) Redetermination includes the rating of
the new impairment attributed to the accepted new or omitted medical condition
and the reevaluation of the worker's social-vocational factors. The following
applies to claims with a date of injury on or after Jan. 1, 2005:
(A) When there is a previous work disability
award and there is no change in the worker's restrictions but impairment values
increase, work disability must be awarded based on the additional
impairment.
(B) When there is not a
previous work disability award but the accepted new or omitted medical
condition creates restrictions that do not allow the worker to return to
regular work, the work disability must be awarded based on any previous and
current impairment values.
(b) When performing a redetermination of the
extent of permanent disability under this section, the amount of impairment
caused by a condition other than the accepted new or omitted condition is not
re-evaluated and is given the same impairment value as established at the last
arrangement of compensation.
(4) When a worker has a prior award of
permanent disability under Oregon workers' compensation law, disability is
determined under OAR 436-035-0015 (offset) for purposes of determining
disability only as it pertains to multiple Oregon workers' compensation
claims.
(5)
Establishing
impairment.
(a) Impairment is
established based on objective findings of the attending physician under ORS
656.245(2)(b)(C)
and OAR 436-010-0280.
(b) On
reconsideration, when a medical arbiter is used, impairment is established
based on objective findings of the medical arbiter, except where a
preponderance of the medical evidence demonstrates that different findings by
the attending physician are more accurate and should be used.
(c) A determination that loss of use or
function of a body part or system is due to the compensable injury is a finding
regarding the worker's impairment.
(d) A determination that loss of use or
function of a body part or system is due to the compensable injury must be
established by the attending physician or medical arbiter.
(6) Objective findings made by a consulting
physician or other medical providers (e.g., occupational or physical
therapists) at the time of closure may be used to determine impairment if the
worker's attending physician concurs with the findings.
(7) If there is no measurable impairment
under these rules, no award of permanent partial disability is
allowed.
(8) Pain is considered in
the impairment values in these rules to the extent that it results in valid
measurable impairment. For example: The medical provider determines that
giveaway weakness is due to pain attributable to the compensable injury. If
there is no measurable impairment, no award of permanent disability is allowed
for pain. To the extent that pain results in disability greater than that
evidenced by the measurable impairment, including the disability due to
expected waxing and waning of the worker's compensable injury, this loss of
earning capacity is considered and valued under OAR 436-035-0012 and is
included in the adaptability factor.
(9) Methods used by the examiner for making
findings of impairment are the methods described in these rules and further
outlined in Bulletin 239, and are reported by the physician in the
form and format required by these rules.
(10) Range of motion is measured using the
goniometer, except when measuring spinal range of motion; then an
inclinometer must be used. Reproducibility of abnormal motion is used to
validate optimum effort.
(a) For obtaining
goniometer measurements, center the goniometer on the joint with the base in
the neutral position. Have the worker actively move the joint as far as
possible in each motion with the arm of the goniometer following the motion.
Measure the angle that subtends the arc of motion. To determine ankylosis,
measure the deviation from the neutral position.
(b) There are three acceptable methods for
measuring spinal range of motion: the simultaneous application of two
inclinometers, the single fluid-filled inclinometer, and an electronic device
capable of calculating compound joint motion. The examiner must take at least
three consecutive measurements of mobility, which must fall within 10% or 5
degrees (whichever is greater) of each other to be considered consistent. The
measurements must be repeated up to six times to obtain consecutive
measurements that meet these criteria. Inconsistent measurements may be
considered invalid and that portion of the examination disqualified. If acute
spasm is noted, the worker should be re-examined after the spasm
resolves.
(11) Validity
is established for findings of impairment under the criteria noted in these
rules and further outlined in Bulletin 239, unless the validity criteria for a
particular finding is not addressed, or is determined by physician opinion to
be medically inappropriate for a particular worker. Upon examination, findings
of impairment that are determined to be ratable under these rules are rated
unless the physician determines the findings are invalid. When findings are
determined invalid, the findings receive a value of zero. If the validity
criteria are not met but the physician determines the findings are valid, the
physician must provide a written rationale, based on sound medical principles,
explaining why the findings are valid. For purposes of this rule, the straight
leg raising validity test (SLR) is not the sole criterion used to invalidate
lumbar range of motion findings.
(12) Except for contralateral comparison
determinations under OAR 436-035-0011(3), loss of opposition determination
under OAR 436-035-0040, averaging muscle values under OAR 436-035-0011(8), and
impairment determined under ORS
656.726(4)(f),
only impairment values listed in these rules are to be used in determining
impairment. Prorating or interpolating between the listed values is not
allowed. For findings that fall between the listed impairment values, the next
higher appropriate value is used for rating.
(13) Values found in these rules consider the
loss of use, function, or earning capacity directly associated with the
compensable injury. When a worker's impairment findings do not meet the
threshold (minimum) findings established in these rules, no value is granted.
(a) Not all surgical procedures result in
loss of use, function, or earning capacity. Some surgical procedures improve
the use and function of body parts, areas, or systems or ultimately may
contribute to an increase in earning capacity. Accordingly, not all surgical
procedures receive a value under these rules.
(b) Not all medical conditions or diagnoses
result in loss of use, function, or earning capacity. Accordingly, not all
medical conditions or diagnoses receive a value under these rules.
(14) Waxing and waning of signs or
symptoms related to a worker's compensable injury are already contemplated in
the values provided in these rules. There is no additional value granted for
the varying extent of waxing and waning of the compensable injury. Waxing and
waning means there is not an actual worsening of the condition under ORS
656.273.
Publications: Publications referenced are available from the
agency.
Statutory/Other Authority: ORS
656.726
Statutes/Other Implemented: ORS
656.726, ORS
656.005, ORS
656.214, ORS
656.245, ORS
656.267, ORS
656.268 & ORS
656.273
