SAIF Corp. v. Fister

SCHUMAN, J.,

concurring.

I agree with the majority that we must remand this case because the record does not provide sufficient information to enable us to decide whether the Workers’ Compensation Board erred in applying subsection (a) of former OAR 436-35-310(4) instead of subsection (c). I write separately to register my opinion that we should not send this case back to the Board for reconsideration without providing any guidance about how to apply the subsection it ultimately decides is correct.

*21In the process of deciding this case, the Board arguably applied the wrong subsection of former OAR. 436-35-310(4), arguably misinterpreted that subsection, and indicated that it would arguably have misapplied the other subsection had it chosen to apply that one. We now send the case back to the Board without deciding the issue on which the parties disagree: how should BFC be calculated? Further, claimant argues that the results under subsections (a) and (c) are identical, so that any error in choosing one over the other is harmless. Our remand without addressing that assertion implies that we believe otherwise: why would we remand for a choice if we thought that the choice was irrelevant? To clarify our position on that issue, and to prevent more unnecessary delays, we should offer some guidance. Mine follows.

I begin with subsection (4)(a). Under that subsection, if the claimant’s job is precisely described in the DOT, the strength rating assigned by the DOT for that job is used. If, on the other hand, “a combination of DOT codes most accurately describes a worker’s duties, the highest strength for the combination of codes shall apply.” Former OAR 436-35-310(4)(a). This sentence, as employer correctly argues, does not allow a claimant whose job includes only a very few duties from the higher DOT category to bootstrap himself into it. The lawyer (DOT code: “sedentary”) who occasionally moves a box of files or carries a heavy suitcase does not, by virtue of those occasional duties, qualify for the same strength rating as a file clerk (DOT code: “light”) or baggage clerk (DOT code: “medium”). It strains the plain language beyond its breaking point to say that a combination of coded jobs is the “most accurate” description of a claimant’s job merely because no coded job lists every duty of the claimant’s job. If, for example, a DOT job description lists 25 duties, and the claimant’s job has all of those plus two duties from a higher strength-rated DOT job description, then the single, lower DOT description more accurately describes the claimant’s job than the combined description. Under the better reading, “a combination of DOT codes most accurately describes a worker’s duties” when a complete list of a worker’s duties more closely resembles a combined list of all the duties in two job categories than it does the duties in either category by itself.

*22Contrary to employer’s assertion, however, this system does not require a claimant to demonstrate the frequency with which she performs the duties from the higher strength-rated job, or, for that matter, that the specific duties from the higher strength-rated job that she performs in her job require strength. Subsection (4)(a), by explicitly incorporating the DOT descriptions, necessarily incorporates that document’s presumptive strength ratings; the DOT makes generic strength ratings for jobs, based on the typical frequency of strength-related tasks such a job entails, and subsection (4)(a) adopts them as well.

Calculating BFC under subsection (4)(c), on the other hand, does not require or even permit the Board to consult the DOT; subsection (4)(c) nowhere refers to that document. Rather, the assessment under subsection (4)(c) relies on the categories set out in subsection (4)(e) and defined in former OAR 436-35-310(3). Subsection (4)(e) lists the classifications that “shall apply to establish BFCs: sedentary (S), light (L), medium (M) * * *,” etc. Each of these categories is defined in subsection (3). Those definitions incorporate both strength and frequency criteria. Thus, for purposes of subsection (4)(c), a “light” job is one where the worker has the ability to lift 20 pounds “about 1/3 of the time” and lift or carry objects weighing up to 10 pounds “up to 2/3 of the time.” Former OAR 436-35-310(3)(f), (3)(m), (3)(n). Applying subsection (4)(c), therefore, will require an examination of the frequency and amount of the strength demands of claimant’s job at injury.

In sum, properly to calculate claimant’s BFC, the Board must have access to facts regarding claimant’s work history from which it can determine which subsection of former OAR 436-35-310(4)(a) and subsection (4)(c) applies. If subsection (4)(a) is the appropriate subsection, the BFC depends on the DOT code for the claimant’s job. If claimant’s job duties more closely resemble the combined job duties of two jobs than of any single job, then the appropriate strength rating is the one for the higher of the two jobs. The BFC under subsection (4)(a) can be calculated without any evidence indicating the frequency with which claimant lifts particular weights, because weights and frequencies are categorically incorporated into DOT codes. If subsection (4)(c) is the *23appropriate subsection, then the BFC is determined according to the scale and definitions in subsections (3) and (4)(e). Those subsections establish their own strength and frequency criteria. The calculation of BFC under subsection (4)(c) does not involve DOT codes or job categories; each claimant’s duties are evaluated on a case-by-case basis.

Claimant originally filed her claim in 1993. The case has been to this court and back to the Board on remand once before. For this reason, and because the Board’s legal analysis — the subject of this appeal — seems flawed, I believe that the goals of judicial efficiency in general and the workers’ compensation statutes in particular would be better served if we now addressed the issue that brought the case here, instead of waiting for it to reappear.