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The Worker’s Compensation Board (board) is permitted to rely on a medical arbiter’s examination, even where such examination had been cancelled by the Appellate Review Unit; and render a claimant’s condition as “medically stationary” so long as the subsequent treatments are solely to improve claimant’s functional abilities.

This was an appeal by SAIF of the Worker’s Compensation Board’s (Board) order awarding permanent partial disability (PPD) benefits to Rebeca F. Ramos (Ramos). Ramos suffered a knee injury while working as a laborer at a plant nursery. Following a second surgery, Ramos was examined by claimant’s attending physician, Dr. Black, and an independent medical examiner, Dr. Vessely. Both doctors reported that Ramos was “medically stationary” and able to work. SAIF then closed the claim and awarded Ramos two percent PPD benefits. Ramos appealed her PPD award to the Appellate Review Unit (ARU). The ARU initially scheduled a medical arbiter examination with Dr. Tatsumi but then cancelled the examination. However, Dr. Tatsumi continued with the examination and reported that Ramos’ condition significantly limited her ability to repetitively use her right knee. On review, the Board increased Ramos’ PPD award to 11 percent based on Dr. Tatsumi’s report. On appeal, SAIF assigned errors to the board’s reliance on Dr. Tatsumi’s examination when it had been cancelled by ARU and its determination that Ramos’ condition was “medically stationary” at the time of Dr. Tatsumi’s examination. The Court held that the board was within ORS 656.268(8)(a), ORS 656.268(6)(f), and OAR 436-035-0007, which required the board to consider the medical arbiter’s report and this decision was unreviewable by the Court because there was no predicate rule. The Court also held that there was substantial evidence to support the board’s determination that Ramos’ condition was “medically stationary” at the time of Dr. Tatsumi’s examination. Affirmed.