source: Caselaw Access Project

author: FLYNN, J.

license: Public Domain

text:
    In the MATTER OF the COMPENSATION OF Susan CAREN, Claimant.
    Susan Caren, Petitioner on Review, v. Providence Health System Oregon, Respondent on Review.
    SC S065553
    Supreme Court of Oregon.
    August 8, 2019 Argued and submitted September 11, 2018.
    Joe Di Bartolomeo, Di Bartolomeo Law Office PC, Astoria, argued the cause and filed the briefs for petitioner on review.
    Vera Langer, Lyons Lederer LLP, Salem, argued the cause and filed the brief for respondent on review.
    Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices.

      Kistler, J., retired December 31, 2018, and did not participate in the decision of this case.

   FLYNN, J.

The dispute in this workers' compensation case arises from the intersection of overlapping statutory provisions that control the determination of a worker's permanent partial disability. ORS 656.214 obligates employers to provide compensation for a worker's permanent impairment, meaning "loss of use or function" that is "due to the compensable industrial injury." ORS 656.214(1)(a). But another statute limits the employer's liability when the compensable injury combines with a qualifying "preexisting condition" to "cause or prolong" the injured worker's' disability or need for medical treatment, unless the compensable injury is the "major contributing cause" of the "combined condition." ORS 656.005(7)(a)(B). As part of that liability limit, the legislature has created a process by which the employer issues a denial of the "combined condition" and then pays permanent partial disability compensation only for the estimated portion of the worker's permanent impairment that is attributable to the "current accepted condition." ORS 656.268 (1)(b). The question we must resolve is whether the legislature intended that an employer would obtain the same limited liability when the employer has not followed the process that the legislature has created for estimating a reduced amount of permanent impairment following the denial of a "combined condition." We conclude that the legislature intended that injured workers would be fully compensated for new impairment if it is due in material part to the compensable injury, except where an employer has made use of the statutory process for reducing liability after issuing a combined condition denial.

I. BACKGROUND

A. Overview of the Workers' Compensation Claims Process

We begin with an overview of key terminology and the basic workers' compensation claim process before explaining the procedural history of this particular case. "A 'compensable injury' is an accidental injury *** arising out of and in the course of employment requiring medical services or resulting in disability or death[.]" ORS 656.005(7)(a). Traditionally, an injury "arises out of" a worker's employment " 'if the labor being performed in the employment is a material, contributing cause which leads to the unfortunate result.' " Schleiss v. SAIF , 354 Or. 637, 643-44, 317 P.3d 244 (2013) (quoting Olson v. State Ind. Acc. Com. , 222 Or. 407, 414-15, 352 P.2d 1096 (1960) ); see also Hopkins v. SAIF , 349 Or. 348, 351, 245 P.3d 90 (2010) (describing a "compensable injury" as proven by a "material contributing cause" standard). When an injury is compensable, the worker may be entitled to a variety of benefits through the period of recovery, including "medical services for conditions caused in material part by the injury," temporary disability compensation for lost wages, and permanent partial disability compensation. ORS 656.245 ; ORS 656.210 ; ORS 656.214.

The rule for compensation is different when the worker has a "combined condition," which arises when an "otherwise compensable injury combines *** with a preexisting condition to cause or prolong disability or a need for treatment." ORS 656.005(7)(a)(B). If the worker has a combined condition, it "is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition." Id . However, only certain preexisting causes qualify as a "preexisting condition" that can form a "combined condition"-generally only conditions diagnosed prior to the injury or "arthritis." ORS 656.005(24)(a).

If the worker has a "combined condition," then the claim may be closed when the "accepted injury is no longer the major contributing cause of the worker's combined ***

condition." ORS 656.268(1)(b). But, "before the claim may be closed" on that basis, the employer must send the worker a written notice denying the combined condition. ORS 656.262(7)(b).

When an employer closes a worker's claim, the employer "shall issue *** an updated notice of acceptance that specifies which conditions are compensable." ORS 656.262(7)(c). Also at the time of closure, the employer calculates and pays permanent partial disability. ORS 656.214. In general, "permanent partial disability" means "[p]ermanent impairment resulting from the compensable industrial injury," where "impairment" is "the loss of use or function of a body part or system due to the compensable industrial injury." ORS 656.214(1)(a), (c)(A). Permanent impairment is measured according to standards adopted by the Director of the Department of Consumer and Business Services and is "expressed as a percentage of the whole person." ORS 656.214(1)(a) ; ORS 656.726(4)(f). However, if the claim has been closed "because the accepted injury is no longer the major contributing cause of the worker's combined or consequential condition or conditions," then permanent partial disability compensation is based on an estimate of "the likely permanent disability that would have been due to the current accepted condition." ORS 656.268(1)(b).

B. Procedural History of this Case

Employer's calculation of permanent partial disability in the notice of claim closure is the source of the dispute that arose in this case. Claimant injured her back at work, and employer issued a notice of acceptance listing the accepted condition as a "lumbar strain." A few months later, claimant underwent surgery to address a lumbar disc herniation, but she continued to experience back pain and enrolled in and completed a comprehensive pain management program. At discharge from that program, a staff physician measured diminished lumbar range of motion but also noted preexisting arthritis in the lumbar spine, which the evaluator estimated contributed to 50 percent of the impairment in claimant's spine. However, claimant did not request that employer accept a "combined condition," and employer did not accept or deny a "combined condition."

When claimant's attending physician released her to return to regular work, the physician concurred with the earlier evaluator that preexisting arthritis contributed to an estimated 50 percent of claimant's lumbar impairment. Based on that report, employer issued a notice of closure in which it calculated claimant's permanent partial disability as 50 percent of her impairment from reduced range of motion. On reconsideration, the department's medical arbiters estimated that claimant's arthritis was actually responsible for 70 percent of her current impairment, and the Order on Reconsideration reduced her permanent partial disability compensation accordingly.

On review of that decision, the administrative law judge and the Workers' Compensation Board agreed that the department had correctly reduced claimant's disability to factor out the estimated contribution from her preexisting arthritis. The board reasoned: "[I]t is undisputed that claimant's permanent impairment is due in part to 'arthritis ' (i.e. , a legally cognizable 'preexisting condition') and in part to her accepted lumbar strain. Accordingly, claimant's impairment was appropriately apportioned." The Court of Appeals affirmed in a per curiam opinion, citing to an earlier decision in which it had held that, if the worker has a "legally cognizable" preexisting condition (such as claimant's arthritis ), then "impairment due to the compensable industrial injury" is calculated by factoring out the estimated contribution from the preexisting condition, "unless [the preexisting condition] is part of an accepted combined condition claim that remains compensable at the time of closure."

McDermott v. SAIF , 286 Or. App. 406, 420, 422, 398 P.3d 964 (2017).

Claimant argues that the Court of Appeals has misconstrued the meaning of loss "due to the compensable industrial injury," on which permanent partial disability is based. According to claimant, the legislature intended ORS 656.268(1)(b) to provide an exception to a general rule that the employer is obligated to pay compensation for the full measure of the worker's disability if the disability as a whole is caused in material part by the compensable injury, and the legislature intended that employers would obtain the benefit of that exception only by following the specified process. In other words, the dispute turns on whether the legislature intended that permanent partial disability for workers with a preexisting condition will be calculated automatically under the method described in ORS 656.268(1)(b)-absent an "accepted combined condition"-or whether the legislature intended that permanent partial disability will be calculated under the method described in ORS 656.268(1)(b) only when the employer has issued a denial of a "combined condition" and closed the claim under the process specified in ORS 656.268(1)(b). We allowed review to resolve that question of statutory construction.

II. DISCUSSION

As with all questions of statutory construction, our goal is to determine the intention of the legislature when it enacted the relevant statutes. See State v. Gaines , 346 Or. 160, 171, 206 P.3d 1042 (2009). We have explained that the words adopted by the legislature provide the best evidence of what the legislature intended, although we also give appropriate weight to any pertinent legislative history. Id . at 171-72, 206 P.3d 1042. We examine the "workers' compensation statutes as a whole" and our "prior judicial interpretations" of those statutes to determine whether the legislature intended that the estimated contribution from a preexisting condition would be factored out of a workers' permanent impairment only when an employer follows the process specified in ORS 656.268(1)(b) for accomplishing that result. See Brown v. SAIF , 361 Or. 241, 283, 391 P.3d 773 (2017) (explaining that process for construing a different provision of chapter 656).

To understand whether the legislature intended the process for denying and closing a "combined condition" to be the only process through which an employer's liability for permanent impairment will be reduced to account for a preexisting condition, we first explain the longstanding method for calculating permanent partial disability under ORS 656.214, to which the legislature added the process for identifying, accepting, and denying "combined conditions." We then explain that "combined condition" process and our prior construction of the process in Schleiss , 354 Or. 637, 317 P.3d 244. Finally, we explain why the process proposed by employer allows a denial of compensation through a process that is inconsistent with the notice requirements that the legislature has otherwise specified in the workers' compensation laws. From those considerations, we conclude that the legislature intended the combined condition process to create an exception to the general rule that employers pay compensation for the full measure of the workers' permanent impairment if the impairment as a whole is caused in material part by the compensable injury, and we conclude that the legislature intended that employers would obtain the benefit of that exception only by issuing a denial of a "combined condition" and following the process that the legislature has specifically provided in ORS 656.268(1)(b) for reducing the worker's permanent partial disability.

A. Text and Prior Construction of ORS 656.214

As explained above, permanent partial disability means "[p]ermanent impairment resulting from the compensable industrial injury," and "impairment" is the loss of use or function "due to" the compensable injury. ORS 656.214 (1)(a). The pertinent portions of that statute specify:

"(1) As used in this section:
"(a) 'Impairment' means the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease determined in accordance with the standards provided under ORS 656.726 expressed as a percentage of the whole person.
"(b) 'Loss' includes permanent and complete or partial loss of use.
"(c) 'Permanent partial disability' means:
"(A) Permanent impairment resulting from the compensable industrial injury or occupational disease; or
"(B) Permanent impairment and work disability resulting from the compensable industrial injury or occupational disease.
"* * * * *
"(2) When permanent partial disability results from a compensable injury or occupational disease, benefits shall be awarded as follows:
"(a) If the worker has been released to regular work[ ] by the attending physician * * *, the award shall be for impairment only. Impairment shall be determined in accordance with the standards provided by the Director of the Department of Consumer and Business Services pursuant to ORS 656.726(4). * * *.
"(b) If the worker has not been released to regular work by the attending physician *** the award shall be for impairment and work disability."

Because claimant's attending physician released her to regular work, the permanent partial disability benefit that "shall be" awarded is determined exclusively by claimant's "impairment." ORS 656.214(2)(a). Thus, claimant's award for "permanent partial disability" is based on her permanent "loss of use or function" that is "due to the compensable industrial injury." ORS 656.214(1)(a) (emphasis added).

Claimant and employer disagree about the meaning of "loss of use or function * * * due to the compensable industrial injury," the phrase used to define "impairment." ORS 656.214(1)(a) (emphasis added). Claimant understands permanent impairment to be a single measure of the worker's new loss of use or function "expressed as a percentage of the whole person." Id . If that new loss, as a whole, is caused in material part by the injury, claimant argues, then the impairment as a whole is "due to" the compensable injury, without reduction for other contributing causes. Employer disagrees. It argues that, if a portion of the worker's impairment is attributable to the compensable injury combining with a preexisting condition, then the portion of the loss that is attributable to the preexisting condition is not "due to" the compensable injury.

We have explained that, as used in ORS 656.214, "impairment due to" plausibly could mean either the impairment as a whole, or a portion of the impairment. Schleiss , 354 Or. at 643, 317 P.3d 244. However, earlier decisions from this court have clarified that claimant proposes the more plausible meaning of the general standard for calculating impairment under ORS 656.214. See Barrett v. D & H Drywall , 300 Or. 325, 709 P.2d 1083 (1985), adh'd to on recons , 300 Or. 553, 715 P.2d 90 (1986).

Before considering how the introduction of "combined conditions" alters the general rule, we begin by examining Barrett and its application of the longstanding method for calculating permanent partial disability under ORS 656.214. Because Barrett addressed a permanent partial disability dispute in a case very much like the present case-but prior to the addition of a combined condition process-it provides significant historical context and identifies the foundation on which the legislature added the process for identifying, accepting, and denying "combined conditions."

As we explained in Barrett , the claimant fell at work and hit his back, and those "injuries were superimposed upon" an underlying disease of osteoarthritis that had been "asymptomatic for some time before the accident." 300 Or. at 330, 327, 709 P.2d 1083 (internal quotation marks omitted). The employer accepted responsibility for the consequences of the work accident but denied liability for the preexisting disease. At the time of claim closure, a dispute arose over whether the worker's permanent partial disability award should include a portion of the disability that doctors attributed to the osteoarthritis.

The Court of Appeals had held that, in calculating the worker's permanent partial disability under ORS 656.214, impairment related to the osteoarthritis should not be considered. Barrett v. D & H Drywall , 73 Or. App. 184, 186, 698 P.2d 498 (1985). But this court disagreed. As we explained, "[t]he oft-expressed maxim still applies: An employer takes the worker as he finds him. Whether the worker suffers greater permanent partial disability * * * because of a preexisting condition is irrelevant in deciding the amount of loss of earning capacity caused by a new injury superimposed on a preexisting condition." Barrett , 300 Or. at 328, 709 P.2d 1083 (footnote omitted). On reconsideration, we clarified that the permanent partial disability award should not compensate the worker for the osteoarthritis itself "or for any disability that may have existed by reason thereof before the present compensable injury." 300 Or. at 555, 715 P.2d 90. However, if the work injury caused a preexisting "disease to produce symptoms where none existed immediately prior to the accident," and if "those symptoms produced loss of earning capacity, then that loss of earning capacity is 'due to' the compensable injury, and the statute requires an award of compensation therefor." Id. at 555-56, 715 P.2d 90.

To summarize, Barrett determined that the worker's permanent partial disability was the full amount of his new impairment, without reduction for the portion of that loss attributable to his preexisting condition. Given the legislature's subsequent adoption of the "combined condition" framework, Barrett does not resolve this case. But Barrett supplies the foundation and historical context for the legislature's enactment of the process for identifying and processing "combined conditions."

B. Text and Prior Construction of the Combined Conditions Process

Following Barrett , the legislature created a special status for "combined conditions," beginning in 1990 when it altered the definition of a "compensable injury" as part of an overhaul of Oregon's workers' compensation laws during a 1990 special legislative session. Or. Laws 1990, ch. 2, § 3 (Spec. Sess.); see Brown , 361 Or. at 265-66, 391 P.3d 773 (explaining the 1990 special session). Among other things, the 1990 legislation amended the definition of "compensable injury" to specify that when an "otherwise compensable injury combines *** with a preexisting condition to cause or prolong disability or a need for treatment," the combined condition "is compensable only if, so long as[,] and to the extent that[,] the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition." ORS 656.005(7)(a)(B). Following that 1990 special session, however, the Court of Appeals concluded that the legislature had failed to create a process for denying combined conditions. Brown , 361 Or. at 279, 391 P.3d 773. The legislature addressed that oversight, and more, by adding numerous requirements for accepting and denying specific conditions, including "combined conditions."

1. Text of the "combined condition" processing statutes

The processing requirements that the legislature added to chapter 656 clarified that an employer's "acceptance of a combined or consequential condition * * * shall not preclude the [employer] * * * from later denying the combined or consequential condition if the otherwise compensable injury ceases to be the major contributing cause of the combined or consequential condition" and also clarified that the employer "must issue a written denial to the worker when the accepted injury is no longer the major contributing cause of the worker's combined condition before the claim may be closed." Or. Laws 1995, ch. 332, § 28, codified at ORS 656.262(6)(c), (7)(b) (1995). In addition, new provisions required the employer to issue an "updated notice of acceptance" at the time of claim closure to specify "which conditions are compensable," and the legislature created a mechanism by which an injured worker can alert the employer "at any time" if the worker believes that a condition was incorrectly omitted from a notice of acceptance. Or. Laws 1995, ch. 332, § 28, codified at ORS 656.262(6)(d) (1995) ; Or. Laws 1997, ch. 605, § 1, codified at ORS 656.262(7)(c) (1997). All of those added procedures remain in the current version of ORS 656.262. Especially pertinent to the question before us, the 1995 legislation created the specific process by which a claim may be closed with a permanent partial disability award that factors out the estimated contribution from preexisting conditions. ORS 656.268(1) (1995). In its current form, that statute specifies that an employer may close the claim when "[t]he accepted injury is no longer the major contributing cause of the worker's combined or consequential condition or conditions" and that,

"[w]hen the claim is closed because the accepted injury is no longer the major contributing cause of the worker's combined or consequential condition or conditions, and there is sufficient information to determine permanent disability, the likely permanent disability that would have been due to the current accepted condition shall be estimated."

ORS 656.268(1)(b).

Finally, the legislature addressed the burden of proof for combined conditions in 2001. Or. Laws 2001, ch. 865, § 2. In general, the injured worker bears the burden of proving that an injury is compensable and of proving "the nature and extent of any disability resulting therefrom." ORS 656.266(1). However, "for the purpose of combined condition injury claims under ORS 656.005(7)(a)(B) only," the burden is reversed:

"Once the worker establishes an otherwise compensable injury, the employer shall bear the burden of proof to establish the otherwise compensable injury is not, or is no longer, the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition."

ORS 656.266(2)(a).

The parties advance diametrically opposed views regarding the significance of those post- Barrett statutory changes. Claimant contends that the legislature only intended to create an exception to the general rule from Barrett that permanent partial disability under ORS 656.214 includes the full measure of new impairment, as long as the disability as a whole is caused in material part by the compensable injury. She also contends that the legislature intended that employers would obtain the benefit of that exception only by using the process specified in ORS 656.268(1)(b), after issuing a "written denial to the worker when the accepted injury is no longer the major contributing cause of the worker's combined condition." ORS 656.262 (7)(b).

Employer, by contrast, understands the statutory changes since Barrett to have altered fundamentally the calculation of impairment "due to" the compensable injury. Employer emphasizes that employers now must specifically list the accepted conditions in an updated notice of acceptance at closure and that an injured worker who believes that a condition has been omitted may object to the acceptance notice or initiate claims for a new or omitted condition "at any time." See ORS 656.262(6)(d) ; ORS 656.267(1). If those additional conditions are accepted after claim closure, then the claim must be reopened, and the worker will receive additional permanent partial disability to address those additional conditions. See ORS 656.262(7)(c). According to employer, that process places the burden on the injured worker to request acceptance of a combined condition in order to receive permanent partial disability compensation for the portion of impairment attributable to a preexisting condition. Applying that understanding of the statute to the present claim, employer notes that, although claimant does not deny that a preexisting condition contributed to the diminished range of motion on which her impairment rating is based, she failed to request that employer accept that combined condition.

The question is whether the legislature intended the combined condition statutory process to change the rule for calculating permanent partial disability whenever the employer identifies a "preexisting condition," or whether the legislature intended only to create an exception when a combined condition is identified, denied, and closed under the process set out in ORS 656.268(1)(b). Three aspects of the combined condition statutory framework persuade us that the legislature intended to create a limited exception to the general rule that Barrett described for calculating permanent partial disability under ORS 656.214. First, the legislature has provided a process for addressing an employer's liability for combined conditions, but the legislature has not changed the key phrase in ORS 656.214 that Barrett construed. Then, as now, the measure of permanent partial disability was the loss "due to" the compensable injury. ORS 656.214(5) (1985), ORS 656.214(1)(a). Second, the legislature set out the standard for compensability in cases of "preexisting condition[s]" as an exception to the general definition of a "compensable injury," allowing employers to limit their liability for an "otherwise compensable injury." ORS 656.005(7)(a)(B). Third, the proof requirements for a combined condition suggest that the legislature intended that process to provide a limited exception. Only certain preexisting contributing causes qualify as a "preexisting condition" that can form a "combined condition," ORS 656.005 (24)(a), and once the worker proves a compensable injury, it becomes the employer's burden to prove that the compensable injury has combined with a qualifying preexisting condition in a way that cuts off the employer's liability for medical care or disability. ORS 656.266(2)(a).

Thus, the text of the combined condition statutes suggests that the legislature intended "combined conditions" to be a limited exception to the general rule that the employer is obligated to pay compensation for the full measure of the workers' disability. In addition, the legislature created a specific statutory process by which employers will obtain the benefit of that exception. In combination, those considerations suggest that the legislature did not intend for employers to obtain the same benefit by following some unspecified process, although that is not a foregone conclusion.

2. Prior construction of the "combined condition" processing statutes

We, thus, turn to our decision in Schleiss , in which we addressed a related question. The worker in Schleiss had injured his back at work, and the insurer had accepted a claim for a lumbar strain. At claim closure, the worker had new impairment caused in part by the injury but also had preexisting degenerative joint disease and accelerated aging, to which the medical arbiters attributed a majority of the worker's impairment. Schleiss , 354 Or. at 640, 317 P.3d 244. The department awarded permanent partial disability compensation for only the portion of impairment that it viewed as "due to" the compensable injury, after reducing the measured impairment by the estimated contribution from the worker's degenerative disease and accelerated aging. Id.

The claimant in Schleiss challenged that reduction, and the parties raised essentially the same arguments as the parties raise in this case. The claimant argued that, if "the compensable injury materially contributed to the total impairment, all the impairment is 'due to' the compensable injury," unless the employer has followed the combined condition closure process. Schleiss , 354 Or. at 643, 317 P.3d 244. But the insurer argued that the "claimant had the burden of asserting and proving" a compensable combined condition if the "claimant wished to have an impairment caused in part by a preexisting condition included in his [permanent partial disability] award[.]" Id . at 651, 317 P.3d 244. We concluded that it was "unnecessary" to resolve that disagreement in Schleiss because there was no evidence that the claimant had "a legally cognizable preexisting condition" that could form a combined condition. Id. As we explained, if a preexisting contributing cause is not a "legally cognizable preexisting condition" that would qualify to reduce the claimant's impairment as part of a "combined condition," then it does not "qualify to reduce the impairment that is 'due to' a claimant's compensable injury under ORS 656.214." Id . at 654, 317 P.3d 244.

Here, claimant acknowledges that she suffers from a legally cognizable preexisting condition, so it is necessary to resolve whether the legislature intended that employers will receive the benefit of an impairment deduction like that provided in ORS 656.268(1)(b) even when the employer has not denied a combined condition. As we have just emphasized, Schleiss stopped short of resolving that question. Id. at 651, 317 P.3d 244. But Schleiss ' analysis of the combined condition statutes provides important guidance for this case in two ways.

First, Schleiss confirms that the impairment reduction for preexisting conditions is an exception to the general rule that all of a worker's impairment is "due to" the compensable injury if the impairment as a whole is caused in material part by the injury. As we explained, "[i]n this case, apart from the compensable injury, there are no other legally cognizable contributing causes that claimant's impairment is 'due to' under either statute. It follows that all of claimant's impairment is 'due to' the compensable injury for purposes of making a [permanent partial disability] award under ORS 656.214." Id. at 655, 317 P.3d 244.

Second, we attributed significance to the legislature's creation of a specific process for employers to follow to obtain the benefit of that exception. As we emphasized, "if a preexisting contributing cause would not qualify to reduce the impairment that is 'due to' a compensable combined condition under ORS 656.268(1)(b), it makes no sense to conclude that such a cause would qualify to reduce the impairment that is 'due to' a claimant's compensable injury under ORS 656.214." Id . at 654, 317 P.3d 244 (footnote omitted). That reasoning is significant because a "legally cognizable preexisting condition" is only one requirement for reducing the worker's impairment under ORS 656.268(1)(b) to account for a combined condition; it also requires that the condition has combined with the "otherwise compensable injury" and that the employer can meet its "burden of proof to establish the otherwise compensable injury is not, or is no longer, the major contributing cause of the disability of the combined condition." ORS 656.005(7)(a)(B) ; ORS 656.266(2)(a). Yet, if employers were able to use a preexisting condition to reduce the impairment that is "due to" the worker's compensable injury without expressly denying a combined condition, then there would be cases in which employers would obtain the benefit of the exception set out in ORS 656.268(1)(b), even though the preexisting condition would not qualify to reduce the worker's impairment under ORS 656.268(1)(b). To explain why that would be the result and why the legislature intended employers to issue a denial before reducing the impairment that is "due to" a claimant's compensable injury under ORS 656.214, we turn to the general notice requirements of the workers' compensation laws.

C. Additional Statutory Context

The broader context of the workers' compensation laws persuades us the legislature intended that the specified process for denying a "combined condition" and then closing the claim with reduced impairment under ORS 656.268(1)(b) would be the only process by which employers obtain the benefit of that impairment reduction. Employer proposes that the legislature has created another process to ensure that injured workers are not denied permanent partial disability because of a preexisting condition unless the condition would qualify to reduce the worker's impairment under ORS 656.268(1)(b). Under that process, when the claim is closed with a reduced award for impairment, the worker also receives an updated notice of acceptance that will not list a "combined condition." ORS 656.262(7)(c). According to employer, a worker who believes that he or she has a compensable combined condition needs to request that the employer add that "combined condition" to the list of accepted conditions, as provided in ORS 656.262(6)(d). And if the employer ultimately accepts the combined condition-either voluntarily or after a hearing-then the worker's permanent partial disability award will be adjusted to account for the previously-denied portion of the impairment through a new notice of closure. ORS 656.262(7)(c).

However, asking the employer to accept a combined condition affords no solution for workers who dispute that they have a combined condition, either because they dispute that they suffer from a qualifying "preexisting condition" or because they dispute that their preexisting condition has combined with the compensable injury to cause greater disability. Moreover, the process that employer proposes assumes that the worker, who may be unrepresented, understands that there is a need or opportunity to raise the issue of a combined condition. That assumption is misplaced.

In general, the workers' compensation laws require specific written notice whenever an employer intends to deny compensation. ORS 656.262(9). The written notice must state "the reason for the denial" and must inform the worker "of hearing rights under ORS 656.283." Id. That is the notice that the worker will receive if the employer follows the specified process and issues a denial of a combined condition before reducing its liability for permanent impairment that otherwise would be due under ORS 656.214. ORS 656.262(7)(b) (employer "must issue a written denial to the worker when the accepted injury is no longer the major contributing cause of the worker's combined condition before the claim may be closed").

However, if the employer reduces the worker's permanent partial disability in the notice of closure without first issuing a denial of a combined condition, then the partial denial of compensation is the same, but the notice is not. For example, the notice of closure in this case advised claimant only that her 16 percent impairment rating was "apportion[ed] 50%" for a compensable impairment of eight percent and that she had the right to appeal the notice of closure "by requesting reconsideration." The notice nowhere advised claimant of the reason for employer's refusal to provide compensation for half of claimant's impairment; it did not explain that employer had determined that claimant suffered from preexisting arthritis that was 50 percent responsible for her reduced range of motion or that she could challenge that determination at a hearing. And there is no requirement that a notice of closure contain that information. ORS 656.268(5)(c).

Although a worker is ultimately entitled to challenge the notice of closure at a hearing if the worker first requests reconsideration by the department, only issues raised and evidence submitted in the reconsideration process will be permitted at that hearing. ORS 656.283(6). Thus, absent a formal denial of a "combined condition," no other provision of the workers' compensation laws requires that the employer provide notice to the worker when the employer decides that a qualifying preexisting condition has combined with the compensable injury to create additional impairment for which the employer contends it is not liable. And no other process ensures that the worker will have the opportunity to challenge the employer's determinations in an evidentiary hearing. It is not plausible that the legislature intended employers to deny compensation to which a worker otherwise would be entitled for the worker's permanent impairment without providing a notice that affords the worker a meaningful opportunity to challenge that denial of compensation.

Moreover, absent sufficient notice for the worker to challenge the employer's determination regarding a "combined condition," there will be cases in which employers obtain the benefit of that exception even though the preexisting condition "would not qualify to reduce the impairment that is 'due to' a compensable combined condition under ORS 656.268(1)(b)."

Schleiss , 354 Or. at 654, 317 P.3d 244. As we emphasized in Schleiss , "it makes no sense to conclude" that the legislature intended employers to obtain a reduction of "the impairment that is 'due to' a claimant's compensable injury under ORS 656.214," when the worker's preexisting condition does not qualify to reduce the worker's impairment under ORS 656.268(1)(b). Id. The legislature created a process that guarantees sufficient notice because the process requires a written denial of a "combined condition" before the employer reduces the impairment to account for a preexisting condition, and we conclude that the legislature intended employers to follow that process to obtain the benefit of that reduction.

III. CONCLUSION

We conclude that the method for calculating impairment in cases of combined conditions is an exception to, and limitation on, the general rule that the employer pays compensation for the full measure of the workers' permanent impairment if the impairment as a whole is caused in material part by the compensable injury. We conclude that employers obtain the benefit of that exception only by issuing a denial of the "combined condition" and following the process that the legislature has specifically provided in ORS 656.268(1)(b) for reducing the worker's permanent partial disability. We understand the board to have found that claimant's 16% impairment was new impairment caused in material part by her accepted lumbar strain. Thus, in the absence of a combined condition denial, that impairment as a whole was "due to the compensable injury" and should have been reflected in the award of permanent partial disability.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings.

      The workers' compensation statutes address most claims-processing and payment obligations to the "insurer or self-insured employer." See, e.g. , ORS 656.005(8) ; ORS 656.262(7)(c). For clarity, and because the employer in this case is self-insured, we use the term "employer" when referring to the general claims-processing requirements that chapter 656 imposes on the "insurer [for an employer] or self-insured employer."

      We have explained that "the 'injury' component of the phrase 'otherwise compensable injury' in ORS 656.005(7)(a)(B) refers to" the compensable medical condition. Brown v. SAIF , 361 Or. 241, 272, 391 P.3d 773 (2017).

      ORS 656.005(24)(a) provides, in part, that a preexisting condition:
      "means, for all industrial injury claims, any injury, disease, congenital abnormality, personality disorder or similar condition that contributes to disability or need for treatment, provided that:
      "(A) Except for claims in which a preexisting condition is arthritis or an arthritic condition, the worker has been diagnosed with such condition, or has obtained medical services for the symptoms of the condition regardless of diagnosis[.]"

      In rare cases, a worker may be unable to return to any work, and compensation is determined through a separate "permanent total disability" process. ORS 656.206. The statute at issue in this case governs only the determination of permanent partial disability.

      The Court of Appeals and the board refer to this process as "apportionment." See McDermott v. SAIF , 286 Or. App. 406, 422, 398 P.3d 964 (2017).

      An attempt to combine the two definitions produces an incongruity, with "permanent partial disability" meaning "permanent ['loss of use or function of a body part or system due to the compensable industrial injury'] resulting from the compensable industrial injury." Both parties urge us to construe the phrase "due to the compensable industrial injury," and neither proposes that the phrase "resulting from the compensable industrial injury" describes a more limited standard for causation. Thus, we resolve this case by construing the phrase "due to" the compensable industrial injury, as we did in Schleiss , 354 Or. at 655, 317 P.3d 244.

      " 'Regular work' means the job the worker held at injury." ORS 656.214 (1)(d).

      " 'Work disability' means impairment modified by age, education and adaptability to perform a given job." ORS 656.214(1)(e).

      The legislature also added "consequential conditions," but that type of condition is not at issue here. Or. Laws 1990, ch. 2, § 3 (Spec. Sess).

      ORS 656.268(1) (1995) provided:
      "(1) One purpose of this chapter is to restore the injured worker as soon as possible and as near as possible to a condition of self support and maintenance as an able-bodied worker. Claims shall not be closed if the worker's condition has not become medically stationary unless:
      "(a) The accepted injury is no longer the major contributing cause of the worker's combined or consequential condition or conditions pursuant to ORS 656.005(7) and the worker is not enrolled and actively engaged in training. When the claim is closed because the accepted injury is no longer the major contributing cause of the worker's combined *** condition[ ], the likely impairment and adaptability that would have been due to the current accepted condition shall be estimated."

      Employer also argues that those listed "accepted conditions" now define the extent of the "compensable industrial injury" for purposes of calculating impairment "due to the compensable industrial injury." We have explained that the meaning of the term "compensable injury" is "context-specific"; in some of the workers' compensation statutes it has the meaning of "accepted conditions," but in others it "refers to the work accident." Garcia-Solis v. Farmers Ins. Co. , 365 Or. 26, 43, 38, 441 P.3d 573 (2019). We have not previously addressed the meaning of the term "compensable industrial injury" in ORS 656.214, and the issue is not squarely presented in this case. Rather, the board observed that "it is undisputed that claimant's permanent impairment is due *** in part to her accepted lumbar strain," and we allowed review to consider whether the board and Court of Appeals correctly limited claimant's permanent partial disability compensation to the estimated portion of her permanent impairment that is attributable only to the lumbar strain.

      The version of the statute that we applied in Barrett specified that "the criteria for rating of disability shall be the permanent loss of earning capacity due to the compensable injury." 300 Or. at 330, 709 P.2d 1083 (quoting former ORS 656.214(5) (1985) ), while the statute now specifies that permanent partial disability is based on "impairment," which "means the loss of use or function of a body part or system due to the compensable industrial injury or occupational disease." ORS 656.214(1)(a). But the causal requirement for the relevant loss has not changed; it must be "due to" the compensable injury.

      Neither party has identified pertinent legislative history for the 1990 and 1995 amendments. We surveyed the history for the 1990 changes in Brown and explained that "[i]n general, the focus of the new legislation was to make the state's workers' compensation system more cost-effective for employers and more efficient for workers." 361 Or. at 265, 391 P.3d 773. However, a generalized intention to reduce costs for employers does not meaningfully inform our analysis of how extensively the legislature intended to change the established understanding of permanent impairment "due to the compensable injury." We thus focus on the text and context of those statutes.

      Schleiss held that the existence of a legally cognizable preexisting condition is necessary to permit a reduction of the worker's permanent partial disability, but that is not logically equivalent to employer's proposition that the existence of a legally cognizable preexisting condition is sufficient, on its own, to permit the reduction.

      Although the record is clear in this case that claimant's arthritis would be a qualifying preexisting condition and that her compensable injury is not the major contributing cause of her impairment, the construction adopted by the department, board, and Court of Appeals is not limited to cases in which the worker agrees that a qualifying preexisting condition has combined with the compensable injury and is the major contributing cause of the permanent disability. It applies equally to cases in which the worker could successfully challenge either determination.

      ORS 656.268(5)(c) specifies that the notice of closure "must inform":
      "(A) The parties, in boldfaced type, of the proper manner in which to proceed if they are dissatisfied with the terms of the notice of closure;
      "(B) The worker of:
      "(i) The amount of any further compensation, including permanent disability compensation to be awarded;
      "(ii) The duration of temporary total or temporary partial disability compensation;
      "(iii) The right of the worker or beneficiaries of the worker who were mailed a copy of the notice of closure under paragraph (b) of this subsection to request reconsideration by the director under this section within 60 days of the date of the notice of closure;
      "(iv) The right of beneficiaries who were not mailed a copy of the notice of closure under paragraph (b) of this subsection to request reconsideration by the director under this section within one year of the date the notice of closure was mailed to the estate of the worker under paragraph (b) of this subsection;
      "(v) The right of the insurer or self-insured employer to request reconsideration by the director under this section within seven days of the date of the notice of closure;
      "(vi) The aggravation rights; and
      "(vii) Any other information as the director may require; and
      "(C) Any beneficiaries of death benefits to which they may be entitled pursuant to ORS 656.204 and 656.208."

      Claimant understands the department to have based its permanent partial disability determination on former OAR 436-035-0013, and she asks us to declare that rule invalid. However, the department's order contains no indication that it relied on that former rule, which Schleiss had already invalidated, and the department's new rule was adopted after its reconsideration decision in this case. Thus, we do not address the validity of the former rule. Nor do we accept employer's seeming request that we address the validity of current administrative rules, which were not applied in this case.


text:
    Timothy Lee AIKENS, Petitioner, v. BOARD OF PAROLE AND POST-PRISON SUPERVISION, Respondent.
    A162149
    Court of Appeals of Oregon.
    Submitted October 10, 2017. June 12, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for petitioner.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.
    Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.
   EGAN, C. J.

Petitioner is serving a life sentence for one count of aggravated murder. ORS 163.105 (1987). In 2015, petitioner sought, for the third time, to convert the terms of his confinement to life imprisonment with the possibility of parole. After conducting a murder review hearing, the Board of Parole and Post-Prison Supervision (board) concluded that petitioner had failed to carry his burden of proving that he was likely to be rehabilitated in a reasonable period of time and, accordingly, declined to convert his aggravated murder sentence. ORS 163.105(2). Petitioner contends that the board's final order is not supported by substantial evidence or substantial reason and that the board thereby violated his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution. In our review under ORS 183.482(8)(c), we agree with petitioner that the board's order is based in part on a finding that is not supported by substantial evidence. Specifically, there is no evidence in the record to support the board's finding that petitioner's good behavior in prison was "eerily similar" to the behavior that led to his involvement in a brutal murder. We therefore remand for the board to reconsider its decision without relying on that erroneous factual finding.

In 1987, petitioner, a man named Montez, and the victim went to a motel room in Portland. After the three used drugs, Montez attacked the victim, and petitioner helped to subdue her by punching her in the face. Montez raped and brutally sodomized the victim. After the rape, petitioner assisted Montez in binding and gagging the victim, dragging her into the bathroom, and strangling her to death. Then, the two moved the victim's body to the bed, piled her personal belongings and the room's furniture on top of her, and set everything on fire. Petitioner and Montez fled out of state, but petitioner was arrested two months later and eventually convicted of one count each of aggravated murder, first-degree arson, and abuse of a corpse. For the count of aggravated murder, the trial court sentenced petitioner to life imprisonment with a 30-year minimum term without the possibility of parole. In 2015, the board held a murder review hearing, at petitioner's request, regarding petitioner's aggravated murder sentence. The sole issue was whether petitioner was likely to be rehabilitated within a reasonable time. ORS 163.105(2). The board considered each of the 10 factors in OAR 255-032-0020, the rule outlining criteria the board may use to determine whether a petitioner is likely to be rehabilitated. The board determined that some factors were neutral or weighed in petitioner's favor. However, the board concluded that several factors weighed so heavily against petitioner that he failed to carry his overall burden of proof. The board focused "in particular" on the factor in subsection (4) of OAR 255-032-0020 : petitioner's "maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law." The board also relied on petitioner's prior criminal history, his conduct during periods of probation or parole, his parole plan, and the likelihood that he would not conform to the conditions of parole.

In its final order, the board explained its factual findings and reasoning for why it concluded that petitioner failed to meet his overall burden of proving that he was likely to be rehabilitated within a reasonable period of time. With regard to petitioner's lack of maturity, stability, and demonstrated responsibility, the board explained that, in his testimony,

"[petitioner] intentionally left out detail to spare himself the humility of admitting that he had been involved in such a brutal and torturous act. [Petitioner] portrayed himself as the less culpable perpetrator. *** While [petitioner]
may not be as culpable as his co-defendant [sic ], the factual record clearly establishes that [petitioner] was not a passive participant in this crime, and his minimization of his role in the murder at his latest hearing raises concern about how he has matured in the institution."

The board found that petitioner's omissions demonstrated a "lack of effort" to adequately address the personality characteristics that led him to commit his crime. Additionally, the board saw "no progress" in the qualities petitioner attributed his criminality to, namely, his desire to please others and his tendency to be a follower. The board found that petitioner "appeared to have spent his incarceration period focusing on his own perceived victimization and not the nature of his violence." For example, when the board asked why petitioner did not help the victim and instead assisted Montez, petitioner told the board he "just wanted to fit in."

The board found that while petitioner had letters of support stating that he is "trustworthy and extremely helpful, exhibits a willingness to do whatever is assigned to him, and works hard regardless of the task," those letters actually worked against petitioner. The board explained:

"Letter[s] of support for [petitioner] consistently note that [petitioner] is trustworthy and extremely helpful, exhibits a willingness to do whatever is assigned to him, and works hard regardless of the task. While the Board may view these types of recommendations favorably in most cases, in the case of [petitioner], this behavior is eerily similar to the [sic ] his stated lack of ability or willingness to assert himself when faced with moral challenges and remains consistent with his overwhelming desire to want to 'fit in.' "

As to petitioner's previous felony convictions, the board explained that petitioner "minimized" his conduct underlying those convictions, "disassociated himself from his abusive behavior," and concluded that he was "in denial about the extent of his misogynistic impulses and behavior." The board noted that petitioner was on probation when he committed the offense for which he is serving a life sentence and concluded that that factor weighed against him. The board also described petitioner's parole plan as "naïve regarding life on the outside," and noted that while petitioner had some support system, "the [b]oard viewed his failure to disclose the extent of his crime as resulting in relatively superficial relationships." Lastly, the board concluded that there was "no reasonable probability" that petitioner would remain in the community without violating the law or conditions of parole.

Petitioner timely sought administrative review, arguing that he "provided substantial and significant evidence" that proved he was likely to be rehabilitated within a reasonable period of time and that the board failed "to detail why the factors weighing against him constitute substantial reasoning in determining" otherwise. The board granted petitioner's request for administrative review but denied petitioner's request for relief. In its order, the board explained that, having fully evaluated petitioner's contentions based on the record, it adhered to the findings and conclusions articulated in the original order.

On judicial review, petitioner renews his argument that the board's order is not supported by substantial evidence or substantial reason. He also asserts that, because the board's conclusions are not supported by substantial evidence, its order violates his right to due process. For the following reasons, we conclude that one of the board's findings in its order is unsupported by substantial evidence. Because we cannot determine whether the board would have made its ultimate conclusion that petitioner failed to meet his burden of proving that he is capable of rehabilitation without that finding, we remand to the board for reconsideration.

On substantial evidence review, our task is to determine whether the record, viewed as a whole, would permit a reasonable person to make the factual findings that the board made. ORS 183.482(8)(c). We do not "substitute our judgment for that of agency decision-makers," but we do "take into account whatever evidence detracts from the weight of the evidence that supports the agency order." Castro v. Board of Parole , 232 Or. App. 75, 83, 220 P.3d 772 (2009). As noted above, in determining whether an inmate is likely to be rehabilitated within a reasonable time, the board considers factors including those set out in OAR 255-032-0020 :

"(1) The inmate's involvement in correctional treatment, medical care, educational, vocational or other training in the institution which will substantially enhance his/ her capacity to lead a law-abiding life when released;
"(2) The inmate's institutional employment history;
"(3) The inmate's institutional disciplinary conduct;
"(4) The inmate's maturity, stability, demonstrated responsibility, and any apparent development in the inmate personality which may promote or hinder conformity to law;
"(5) The inmate's past use of narcotics or other dangerous drugs, or past habitual and excessive use of alcoholic liquor;
"(6) The inmate's prior criminal history, including the nature and circumstances of previous offenses;
"(7) The inmate's conduct during any previous period of probation or parole;
"(8) The inmate does/does not have a mental or emotional disturbance, deficiency, condition or disorder pre-disposing them to the commission of a crime to a degree rendering them a danger to the health and safety of the community;
"(9) The adequacy of the inmate's parole plan including community support from family, friends, treatment providers, and others in the community; type of residence, neighborhood or community in which the inmate plans to live;
"(10) There is a reasonable probability that the inmate will remain in the community without violating the law, and there is substantial likelihood that the inmate will conform to the conditions of parole."

The board "is not required to rely on all of the criteria set out in OAR 255-032-0020 to support its ultimate conclusion." Dixon v. Board of Parole and Post-Prison Supervision , 257 Or. App. 273, 281 n. 4, 306 P.3d 716, rev. den. , 354 Or. 389, 315 P.3d 420 (2013).

Petitioner argues first that the criteria the board considered favorably weigh heavily in his favor, and also that the criteria not expressly addressed but discussed by the board also weigh in his favor. The board contends that petitioner incorrectly focuses on whether the evidence was sufficient for the board to make the opposite findings, and that he improperly asks this court to weigh evidence when that is a task for the board. We agree with the board. On review, we do not reweigh the evidence. See Martin v. PSRB , 312 Or. 157, 167, 818 P.2d 1264 (1991) (declining the petitioner's invitation to weigh the evidence anew because that task is "exclusively within the province of [the agency]").

Thus, we turn to whether the board's findings are supported by substantial evidence. The board's ultimate conclusion was primarily based on its findings related to factors contained in subsections (4), (6), (7), (9), and (10). The board focused "in particular" on subsection (4), and made several findings related to that factor. We begin by addressing the evidence as to the board's findings under that subsection.

The board found that petitioner lacked maturity or responsibility under OAR 255-032-0020(4), based on its determination that he had not made progress towards addressing his personality characteristics of "desir[ing] to please others" and "tendency to be a follower." To petitioner, the board's negative portrayal of his record of being "trustworthy and extremely helpful, exhibit[ing] a willingness to do whatever is assigned to him, and work[ing] hard regardless of the task" while in prison "defies logic and common sense." Rather, to petitioner, those qualities are direct evidence of rehabilitation and "wholly positive." The board responds that petitioner's record of "diligence and dutifulness" were "ambiguous" in light of his history of "blindly following others and trying to fit in," and thus, the board contends that substantial evidence exists to support its finding.

We agree with petitioner. The board explicitly found that petitioner's consistent record of good conduct and hard work while incarcerated demonstrated by his letters of support, is evidence that petitioner lacks personal development towards becoming a law-abiding citizen, because it is "eerily similar" to the "lack of ability or willingness to assert himself when faced with moral challenges" and "desire to fit in" that led to him following the directions of his codefendant during a brutal murder. No reasonable factfinder could make that finding. That is, no reasonable factfinder could infer that petitioner's compliance with lawful direction in a prison setting is "eerily similar" to his willingness to participate in rape and murder at the direction of a codefendant. Those are such dramatically different settings and circumstances that no reasonable person could equate them. To be sure, the letters themselves would not compel the board to conclude that petitioner had sufficiently addressed his desire to please others and his tendency to be a follower, but they are not, as the board found, affirmative proof that he still has the inability to assert himself when confronted with moral challenges.

Because the board's order does not disclose whether the board would have reached the same determination regarding petitioner's capacity for rehabilitation had it not relied on the erroneous factual finding, we must remand to the board to reconsider its decision without relying on that finding. See King v. Board of Parole , 283 Or. App. 689, 694, 389 P.3d 1171 (2017) (reversing and remanding because the board's order similarly did not disclose whether the board would have reached the same determination without the erroneous factual finding).

Reversed and remanded.

      Since 1987, the legislature has modified ORS 163.105 on several occasions. Because defendant committed his crimes in 1987, we refer to the version of the statute that was in effect when defendant committed his crime.

      Petitioner was also sentenced to a 20-year prison term and a five-year prison term for the other charges, to be served concurrently. Those two sentences have been completed and are not at issue on appeal.

      Under ORS 163.105(2), after the completion of a minimum period of confinement,
      "the State Board of Parole, upon the petition of a prisoner so confined, shall hold a hearing to determine if the prisoner is likely to be rehabilitated within a reasonable period of time. The sole issue shall be whether or not the prisoner is likely to be rehabilitated within a reasonable period of time."


author: CHRISTIANSEN FORSTER, Judge:

text:
    Burris WOLLSIEFFER, Appellant, v. Heather WOLLSIEFFER, Appellee.
    No. 20170645-CA
    Court of Appeals of Utah.
    Filed June 6, 2019
    Burris Wollsieffer, Appellant Pro Se
    Courtney Cooper, Ryan A. Rudd, Salt Lake City, and Bruce M. Pritchet Jr., Attorneys for Appellee
    Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.
    Opinion
   CHRISTIANSEN FORSTER, Judge:

¶1 Burris Wollsieffer (Father) petitioned for modification of the parties' settlement agreement and the Illinois judgment dissolving their marriage. Heather Wollsieffer (Mother) moved the court to hold Father in contempt for his refusal to comply with certain terms of that judgment. After a bench trial, the trial court found Father in contempt for his failure to satisfy his child support obligations and awarded Mother the attorney fees she incurred in her enforcement proceeding. The court also modified Father's child support obligations. Father appeals. We affirm and remand to the trial court for a determination of Mother's attorney fees reasonably incurred on appeal.

BACKGROUND

¶2 Father and Mother divorced in Illinois in 2013. They entered into a settlement agreement, and based upon that agreement, an Illinois court issued a judgment (Illinois Divorce Judgment) awarding Mother sole custody of the parties' children, subject to Father's parent-time. Based on his income, the court ordered Father to pay $ 935.85 as child support every two weeks. Moreover, the Illinois court directed Father to provide additional child support in the amount of 32% of any net bonuses and any income earned in excess of his annual income used for calculating child support (Additur Provision). The Illinois Divorce Judgment required each party to pay one-half of the daycare expenses for the children. When the decree was entered, the parties were living in different states. They anticipated daycare expenses of $ 2,000 per month, due in part to Mother's work-related travel. In the settlement agreement, the parties acknowledged that Mother planned "to move to the state of California" with the children, and Father, who resided in South Dakota at the time, was "moving to Florida."

¶3 In 2015, both parties briefly resided in Utah and Father registered the Illinois Divorce Judgment with the Utah court. In August 2015, Father petitioned for modification of the Illinois Divorce Judgment, alleging that a substantial and material change in circumstances justified altering the existing orders. Father primarily sought a reduction in his child support obligation, but he also requested that the court "make equitable orders regarding parent time and award [Father] statutory parent time" because Mother had allegedly been interfering with his parent-time. Father served Mother with the petition to modify in October 2015.

¶4 Mother moved to dismiss Father's petition, arguing that Father had failed to establish a substantial and material change in circumstances that would support modification of his child support obligation and the parent-time provisions of the Illinois Divorce Judgment. The court agreed with Mother that the parent-time provisions of Father's petition to modify should be dismissed but denied Mother's motion to dismiss with respect to the modification of the child support provisions. Mother also filed an order to show cause alleging that Father had failed to stay current on child support and daycare expenses as ordered by the Illinois Divorce Judgment. The parties proceeded to trial in April 2017 on these issues.

¶5 After hearing testimony and reviewing the evidence offered at trial, the court determined that both parties' incomes had materially increased and that the change in incomes justified a modification of the Illinois Divorce Judgment. Although the parties' incomes had both increased, Father's child support obligation, calculated pursuant to the Utah child support guidelines, changed only minimally. The trial court ordered that child support be paid monthly rather than every other week and eliminated the original 32% Additur Provision from the Illinois Divorce Judgment. Lastly, the court ordered the modification to apply retroactively beginning January 1, 2016. In fixing this date, the court reasoned that the children lived in Utah for only the latter part of 2015 and that they should therefore benefit from the Illinois Divorce Judgment's Additur Provision for that year.

¶6 Among other evidence presented at trial, each party offered an exhibit detailing the payments Father had made for child support and daycare expenses since the Illinois Divorce Judgment was entered in 2013. Relying on Mother's exhibit, the trial court determined that Father failed to pay $ 1,401.08 in past-due child support and $ 5,520 in daycare expenses. For Father's refusal to comply with the Illinois Divorce Judgment and meet these obligations, the trial court held Father in contempt. The trial court further determined that Father received income in 2015 above the Additur Provision's threshold, triggering his obligation to pay an additional amount of child support for that year. Pursuant to the terms of the Illinois Divorce Judgment, the trial court concluded that 32% of Father's excess 2015 income-calculated to be approximately $ 10,000 over the threshold-should have been directed to the parties' children in the form of additional child support. Because Father provided no child support under the Additur Provision for 2015, the court found Father in contempt and ordered him to pay $ 3,205 in unpaid additional child support. In total, the court found that Father was $ 10,126 in arrears.

¶7 Each party requested an award of attorney fees at the end of trial. The trial court denied Father's request for fees for his modification action because he was not impecunious. See Davis v. Davis , 2011 UT App 311, ¶ 22, 263 P.3d 520 ("To recover costs and attorney fees in proceedings on a petition to modify a divorce decree, the requesting party must demonstrate his or her need for attorney fees, the ability of the other spouse to pay, and the reasonableness of the fees." (quotation simplified)); see also Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018). However, the court identified two other statutory bases supporting an award of attorney fees in this action: the contempt statute, see generally id. §§ 78B-6-311 to -317 (LexisNexis Supp. 2018), and Utah Code section 30-3-3(2), which authorizes an award of attorney fees and costs in any action to enforce an order of child support to the party that "substantially prevailed upon the claim or defense." Concluding that Mother "prevailed on her enforcement action," the court awarded her attorney fees, but limited that award specifically to counsel's time spent on the portion of the litigation focused on successfully proving Father's contempt. Supporting this conclusion, the trial court observed that Mother "filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations" and that the court "held [Father] in contempt for failing to comply with the existing support order." The trial court also noted that "some of [Mother's] enforcement efforts were unsuccessful," particularly her argument that "[Father's] income was much higher than he was claiming."

¶8 Considering Mother's counsel's affidavit and supporting documents, including a detailed explanation of work performed and billing rates, the trial court ultimately awarded Mother $ 12,300 in enforcement-related attorney fees.

ISSUES AND STANDARDS OF REVIEW

¶9 Father appeals. He first contends that the trial court erred when it determined that Mother substantially prevailed on her motion to enforce the Illinois Divorce Judgment and therefore erred in awarding her the attorney fees she incurred. "The decision to award or deny attorney fees in domestic cases is within the [trial] court's sound discretion, and we will disturb the decision only if the [trial] court abuses that discretion." Gore v. Grant , 2015 UT App 113, ¶ 11, 349 P.3d 779. Moreover, we "review the trial court's determination as to who was the prevailing party under an abuse of discretion standard," R.T. Nielson Co. v. Cook , 2002 UT 11, ¶ 25, 40 P.3d 1119, but the trial court's "interpretation of a statute is a question of law that we review for correctness," Stephens v. Stephens , 2018 UT App 196, ¶ 20, 437 P.3d 445 (quotation simplified). We will reverse a trial court's award of attorney fees if it fails to provide adequate findings of fact.

Anderson v. Anderson , 2018 UT App 19, ¶ 22, 414 P.3d 1069.

¶10 Father also contends that the trial court erred by miscalculating his arrearages under the Illinois Divorce Judgment for his share of the children's expenses. Specifically, Father contends that the trial court overlooked overpayments he allegedly made between October 2013 and July 2015. We review the trial court's factual findings for clear error. Kimball v. Kimball , 2009 UT App 233, ¶ 14, 217 P.3d 733.

¶11 Finally, both parties seek attorney fees on appeal. "Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal." Osguthorpe v. Osguthorpe , 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (quotation simplified).

ANALYSIS

I. Award of Attorney Fees

¶12 Father argues that the trial court abused its discretion when it awarded attorney fees to Mother and when it fixed the amount of that award. We conclude that the trial court sufficiently supported its decision to award attorney fees to Mother and that the court did not exceed its discretion in fixing the amount of that award.

¶13 Utah Code section 30-3-3(2) authorizes an award of costs and attorney fees "[i]n any action to enforce an order of custody, parent-time, child support, alimony, or division of property in a domestic case" upon the court's determination "that the party substantially prevailed upon the claim or defense." Utah Code Ann. § 30-3-3(2) (LexisNexis Supp. 2018); see also Gore v. Grant , 2015 UT App 113, ¶ 25, 349 P.3d 779 ("When a fee request is made in an order-enforcement proceeding, ... the guiding factor is whether the party seeking an award of fees substantially prevailed on the claim." (quotation simplified)). Fees awarded under subsection (2) "serve no equalizing function but allow the moving party to collect fees unnecessarily incurred due to the other party's recalcitrance." Connell v. Connell , 2010 UT App 139, ¶ 30, 233 P.3d 836. In other words, when one party refuses to comply with a court order, thereby compelling another party to seek its enforcement, that party risks liability for the fees and costs accrued in the enforcement proceeding. See, e.g. , Tribe v. Tribe , 59 Utah 112, 202 P. 213, 216 (1921) (observing that if a party "refuses to comply with the decree, he does so at his peril").

¶14 Here, Mother filed an order to show cause alleging that Father had failed to provide child support and other expenses as required by the Illinois Divorce Judgment, which collectively amounted to more than $ 60,000. The trial court ultimately agreed with Mother, in part, and found Father in contempt because, despite knowing of his support obligations, he willingly disobeyed the terms of the Illinois Divorce Judgment. The court determined that Father failed to pay $ 1,401 in base child support, $ 3,205 in additional child support under the Additur Provision, and $ 5,520 in daycare expenses. In total, the trial court found Father to be more than $ 10,000 in arrears as a result of unpaid obligations under the Illinois Divorce Judgment.

¶15 Considering Mother's request for an award of attorney fees, the trial court observed that Mother sought to enforce the provisions of the Illinois Divorce Judgment. And the court concluded that Mother ultimately "prevailed on her enforcement action" based on the court's determination that Father was "in contempt for failing to comply with the existing support order." Included in the trial court's findings regarding why Mother prevailed, the court refers to its earlier findings and conclusions in which it resolved both Mother's enforcement motion and Father's petition to modify. It observed that Mother "filed an order to show cause in which she alleged that [Father] was delinquent in his existing support obligations." The trial court also noted that "some of [Mother's] enforcement efforts were unsuccessful," particularly her argument that "[Father's] income was much higher than he was claiming."

¶16 Mother claimed that Father refused to pay his share of child support and other expenses as required by the Illinois Divorce Judgment. As a result, Mother asserted she was left to "bear [these] costs" of supporting the parties' children "alone." She therefore sought the court's assistance in enforcing the terms of the then-existing order. The trial court ultimately found Father in contempt for his refusal to meet his obligations to his children, including providing base child support, additional child support under the Additur Provision, and daycare expenses.

¶17 Father successfully argued that the amount of additional child support required under the Additur Provision-a support amount he nevertheless refused to provide-was significantly less than the amount Mother asserted in her order to show cause. Father thus argued below that he substantially prevailed, but the trial court concluded that Mother substantially prevailed because she won on her contempt claims. On appeal, Father argues that because Mother did not receive 51% or more of the amount she alleged Father failed to provide in child support, Mother did not substantially prevail on her claims. But Father cites no authority to support his contention. And without more, we are unpersuaded that Mother, who successfully proved Father's contempt, did not substantially prevail within the meaning of section 30-3-3(2) simply because she recovered less than half of what she sought in child support payments. Accordingly, we discern no abuse of the trial court's discretion in determining that Mother should be awarded attorney fees for her efforts to enforce the terms of the Illinois Divorce Judgment.

¶18 Father also challenges the amount of the attorney fees the trial court awarded to Mother. In fixing the amount of reasonable attorney fees, a trial court should generally consider (1) the legal work that was "actually performed," (2) the amount of work that was "reasonably necessary to adequately prosecute the matter," (3) the attorney's billing rate and whether it is "consistent with the rates customarily charged in the locality for similar services," and (4) any other relevant factors, "including those listed in the Code of Professional Responsibility." Dixie State Bank v. Bracken , 764 P.2d 985, 990 (Utah 1988). Here, Mother submitted the billing invoices from her attorneys documenting the amount of fees she had incurred and counsel's declaration attesting to the time spent, billing rates, and description of the work performed.

¶19 Counsel's billing statements to Mother included the fees charged for work performed prior to Mother's filing of the order to show cause. And separately described and accounted for the work performed in responding to Father's petition to modify the Illinois Divorce Judgment and on Mother's motion to enforce the terms of the then-in-effect judgment. To limit Mother's award of attorney fees to her "efforts to enforce the existing decree," the trial court reduced Mother's requested fees to only those incurred in litigating Mother's motion to enforce the orders of the Illinois Divorce Judgment. The court also took into consideration the fact that some of Mother's enforcement efforts were ultimately unsuccessful.

¶20 Considering the hours Mother's counsel spent litigating her order to show cause all the way through trial, the trial court determined that the time spent and the billing rates of counsel were reasonable in light of their experience. The court therefore awarded Mother $ 12,300 for the fees she incurred specifically litigating the enforcement action. Our review of the record and the court's findings reveals no abuse of the trial court's discretion in calculating reasonable attorney fees. We accordingly affirm the trial court's award of attorney fees to Mother and affirm its calculation of the amount of that award.

II. Calculation of Daycare Expenses

¶21 Father next argues that the trial court overlooked overpayments Father allegedly made with respect to his daycare expense obligations between October 2013 and July 2015.

¶22 Due to the parties' living in different states and work-related travel, the parties' Illinois Divorce Judgment obligated each parent to provide $ 1,000 per month toward daycare expenses for their children. During trial, each party submitted an exhibit summarizing, among other things, receipts for daycare expense payments. When Father moved for admission of his own exhibit, Mother objected, arguing that the calculations in his exhibit were unclear and asserting that his calculations included irrelevant information. During cross-examination, Father stated that he had not prepared a portion of his exhibit and therefore could not testify to its accuracy. Mother subsequently submitted her own exhibit, which documented all child support and daycare expense amounts provided by Father following entry of the Illinois Divorce Judgment. Father later submitted a substitute exhibit, and Mother withdrew her objection. Relying on Mother's exhibit, the trial court determined that Father had failed to meet his daycare-related obligations under the Illinois Divorce Judgment and was $ 5,520 in arrears.

¶23 On appeal, Father asks this court to consider the evidence presented at trial and reach a different finding. "When reviewing a [trial] court's findings of fact on appeal, we do not undertake an independent assessment of the evidence presented during the course of trial and reach our own separate findings with respect to that evidence." 438 Main St. v. Easy Heat, Inc. , 2004 UT 72, ¶ 75, 99 P.3d 801. Instead, we "evaluate whether the court's findings are so lacking in support that they are against the clear weight of the evidence." Id.

¶24 Here, the court considered the testimony of the parties as well as summaries of daycare-expense payments offered by both parties between the entry of the Illinois Divorce Judgment and December 2015. As a starting point, the trial court determined that over this period, the Illinois Divorce Judgment obligated Father to provide $ 1,000 per month for his share of the children's daycare expenses. Mother testified that she had hired a nanny in 2015 but that she had dismissed that nanny midway through December of that year because she did not need surrogate care for the children. Accordingly, the trial court credited Father with $ 500 for that month.

¶25 The court next considered the amounts Father actually provided to cover the costs of the children's daycare. Father asserted that he had overpaid during some months but acknowledged that he "didn't pay anything" toward daycare expenses for the last half of August 2015 through the end of that year. After considering the evidence submitted by both parties, the trial court found that Father owed $ 5,520 in unpaid daycare expenses-the amount Mother asserted remained outstanding. We are not persuaded that the trial court's finding-that Father failed to meet his support obligation for daycare expenses amounting to $ 5,520-is against the clear weight of the evidence presented at trial.

III. Father's Unpreserved Issues

¶26 Finally, Father raises two issues that we conclude were not preserved for appellate review. First, he argues that the trial court erred when it purportedly failed to apply Utah Code section 78B-12-112(4) to fix the date for retroactive application of the modified divorce decree. See Utah Code Ann. § 78B-12-112(4) (LexisNexis 2012) (authorizing a court to retroactively modify a support obligation "with respect to any period during which a modification is pending" and requiring that "the effective date of the modification shall be the month following service on the parent whose support is affected"). We conclude that this issue was not preserved in the trial court.

¶27 Father advocated at trial for retroactive application of the modified divorce decree, but he did not argue for the application of section 78B-12-112(4) or contend, as he does now, that the statute required that the divorce decree be modified effective November 1, 2015. Instead, Father cited no authority for his request and argued generally that the court should make the modified decree retroactive to either the date he filed his petition for modification or the date the petition was served.

¶28 On appeal, Father argues that the applicable statute requires the court to apply a date altogether different from the date he advocated for at trial and different from the date ultimately adopted by the court. Because Father did not argue to the trial court that it was required by section 78B-12-112(4) to make the modification retroactive to November 1, 2015, he has not preserved this issue for appeal. See State v. Johnson , 2006 UT App 3, ¶ 13, 129 P.3d 282 ("Utah courts require specific objections in order to bring all claimed errors to the trial court's attention to give the court an opportunity to correct the errors if appropriate." (quotation simplified)).

¶29 Father also argues that the trial court incorrectly interpreted the parties' Illinois Divorce Judgment. Specifically, he asserts that the trial court improperly used Father's 2015 gross income instead of his net income when it calculated his additional child support obligation under the Additur Provision.

¶30 In addition to obligating Father to provide a fixed amount of base support for the children, the Illinois Divorce Judgment obligated Father to provide additional support amounting to "32% of the net of all bonuses he received, and 32% of any income in excess of" his base salary. (Emphases added.) The trial court determined that, in 2015, Father "earned approximately $ 10,000 in excess of the [threshold amount]," thus triggering the Additur Provision. It accordingly found Father in contempt for failing to provide this additional child support and determined that he was $ 3,205 in arrears. Because Father did not challenge the trial court's interpretation of the Illinois Divorce Judgment's Additur Provision as requiring examination of his gross income as opposed to his net income, we conclude that this issue was not preserved and do not consider it further.

IV. Attorney Fees on Appeal

¶31 Each party requests fees incurred on appeal. "Generally, when the trial court awards fees in a domestic action to the party who then substantially prevails on appeal, fees will also be awarded to that party on appeal." Osguthorpe v. Osguthorpe , 872 P.2d 1057, 1059 (Utah Ct. App. 1994) (quotation simplified). Because we affirm the trial court's award of attorney fees to Mother below and because she has substantially prevailed on appeal, Mother is entitled to the attorney fees she incurred on appeal. We therefore remand to the trial court to determine the amount of attorney fees reasonably incurred in defending this appeal.

CONCLUSION

¶32 Father has not shown that the trial court exceeded its discretion when it determined that Mother substantially prevailed on her motion to enforce the terms of the Illinois Divorce Judgment. The court also acted within its discretion when it fixed the amount of that award, and we discern no clear error in the trial court's factual findings regarding Father's unpaid daycare expense obligations. And Father's other claims are either inadequately briefed or unpreserved. Accordingly, we affirm and award Mother her attorney fees reasonably incurred on appeal. We remand to the trial court for the limited purpose of determining the amount of the award.

      Father asserts a total of six issues on appeal. We address the merits of two of those issues and discuss Father's two unpreserved issues in the body of the opinion. Father's remaining arguments are discussed below: Father argues that the trial court should have credited him with alleged child support overpayments made "shortly before" entry of the Illinois Divorce Judgment. He also contends that the trial court erred when it dismissed his petition to modify the parent-time provisions of the Illinois Divorce Judgment. Because Father cites no supporting authority and offers no reasoned analysis on either of these issues, we conclude that he has inadequately briefed them and we do not consider them further. See Utah R. App. P. 24(a)(8) (requiring an appellant to "explain, with reasoned analysis supported by citations to legal authority and the record, why the party should prevail on appeal"). As a self-represented party, Father is entitled to "every consideration that may reasonably be indulged," Allen v. Friel , 2008 UT 56, ¶ 11, 194 P.3d 903 (quotation simplified), though "we will ultimately hold him to the same standard of knowledge and practice as any qualified member of the bar," Robinson v. Jones Waldo Holbrook & McDonough, PC , 2016 UT App 34, ¶ 28, 369 P.3d 119.
      Father's remaining claims of error-the trial court's selection of a date to retroactively apply the modified divorce decree and its allegedly incorrect interpretation of the Additur Provision in the Illinois Divorce Judgment-are discussed in Part III of this opinion. But our conclusion that these issues were not preserved for appellate review obviates the need to recite the standards of review that would otherwise apply to those issues. See Cheek v. Clay Bulloch Constr. Inc. , 2016 UT App 227, ¶ 14 n.3, 387 P.3d 611.

      Father contends that the trial court "incorrectly interpreted" Utah Code section 30-3-3(2) when it awarded attorney fees to Mother. Although seemingly framing this issue as one of statutory interpretation, Father challenges only the trial court's factual determination that Mother prevailed on her petition to enforce the Illinois Divorce Judgment. We accordingly limit our review to this question.

      We note that both parties requested an award of attorney fees following trial. The trial court determined that neither party was eligible for such an award with respect to the petition to modify because "neither side is impecunious" and both "have the ability to pay their own fees." See Utah Code Ann. § 30-3-3(1) (LexisNexis Supp. 2018) (authorizing an award of attorney fees and costs in divorce decree modification proceedings in order "to enable the other party to prosecute or defend the action"); see also Wilde v. Wilde , 969 P.2d 438, 444 (Utah Ct. App. 1998) (requiring that the award of attorney fees in modification proceedings "be based on evidence of the financial need of the receiving spouse, the ability of the other spouse to pay, and the reasonableness of the requested fees" (quotation simplified)). Neither party challenges this aspect of the trial court's decision.

      The court also noted that it was authorized to award Mother her attorney fees "as a remedy for [Father's] contempt." (Citing Utah Code section 78B-6-311.) But on appeal, Father does not challenge this ruling. Father's failure to do so provides this court with an alternative basis to affirm the trial court's award of attorney fees to Mother. See Kendall v. Olsen , 2017 UT 38, ¶ 12, 424 P.3d 12 ("We will not reverse a ruling of the [trial] court that rests on independent alternative grounds where the appellant challenges only one of those grounds." (quotation simplified)).

      Father asserts that the trial court "did not explain [the court's] basis and numbers used ... with detailed evidence" when it calculated the amount of the attorney fees awarded to Mother. The court, however, explained that it "carefully review[ed] counsel's records," which included the detailed billing statements that Mother's counsel attached to their declaration of attorney fees in which counsel attested to the work performed, time spent, and rates charged. And the court explained which categories of fees it disallowed and the specific number of hours it found reasonable.

      The trial court included one-half of the total hours counsel billed for trial.

      Father does not argue that any exceptions to the preservation rule apply. See State v. Johnson , 2017 UT 76, ¶ 15, 416 P.3d 443 ("When a party fails to raise and argue an issue in the trial court, it has failed to preserve the issue, and an appellate court will not typically reach that issue absent a valid exception to preservation.").

      Father does not argue an exception to the preservation rule on this claim. See State v. Johnson , 2006 UT App 3, ¶ 13, 129 P.3d 282.