Adams v. Edwards Heavy Equipment, Inc.

752 P.2d 340, 90 Or. App. 365
CourtCourt of Appeals of Oregon
DecidedApril 6, 1988
DocketWCB No. 84-10811; CA A41735
StatusPublished
Cited by1 cases

This text of 752 P.2d 340 (Adams v. Edwards Heavy Equipment, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adams v. Edwards Heavy Equipment, Inc., 752 P.2d 340, 90 Or. App. 365 (Or. Ct. App. 1988).

Opinion

NEWMAN, J.

In this aggravation claim, employer petitions for review of an order of the Workers’ Compensation Board that affirmed the referee’s award of permanent total disability. Claimant cross-petitions for review of the Board’s determination that January 24, 1986, is the date on which permanent total disability payments should begin. On the petition, we affirm; on the cross-petition, we reverse.

Claimant was a heavy machine operator. He injured his lower back and right knee at work in April, 1980. His claim was closed in October, 1980, and he received an award of scheduled and unscheduled permanent partial disability. Between 1980 and April, 1984, he continued to have difficulty with his right knee. He had repeated surgery. Twice he received an additional award for permanent partial disability. The last award was on April 24, 1984, by a stipulated order. Physically unable to return to his previous occupation after his intital injury, he participated in a retraining program to learn small engine repair. He had a heart attack in July, 1982, and by-pass surgery in August, 1982. He made a good recovery and then held short term jobs until he was forced to stop because of his knee and a shortage of jobs due to economic conditions.

On July 12, 1984, claimant underwent exploratory surgery for increasing knee pain. His claim was reopened for medical expenses. In August, Dr. Keist, the treating orthopedic surgeon, stated that he believed that claimant would

“return to pre-operative status and can be removed from time loss as of September 15,1984. There should be no change in his permanent impairment award at that time.”

In October, 1984, claimant requested a hearing and asked for temporary total disability and a redetermination of permanent partial disability. On December 6,1984, Keist stated that claimant’s condition was medically stationary. On February 11,1985, claimant’s case was again closed by a determination order which awarded temporary total disability, less time worked, from July 12,1984, through December 6,1984, but no increase in permanent partial disability.

On February 13,1985, claimant filed a supplemental [368]*368request for a hearing and asked for permanent total disability. In May, 1985, he complained to Keist of severe right knee pain. Keist prescribed physical therapy and attributed the increased pain to irritation of the synovium and scarring. He rated claimant’s overall impairment as severe and limited him to walking no more than one hour per day, sitting two hours per day and standing two hours a day. He indicated that claimant could occasionally lift 50 pounds. Subsequently, he authorized time loss from May 22, 1985, to July 15,1985.

In September, 1985, claimant filed another request for hearing, seeking additional time loss, as well as permanent total disability. On January 13,1986, Keist wrote:

“This man has multiple orthopedic problems, primarily at this time centered on his right knee. He has had total knee arthroplasty with one replacement. He has continuing complaints of pain and inability to function in his knee. He has objective demonstration of limitation of motion and weakness of his right knee that would make working at anything but the most sedentary work impossible.
“It is possible that this man can occasionally lift 10 pounds, although he had had previous low back difficulty.
“His objective evidence of orthopedic impairment would be in the moderately severe category.
“This man has cardiac problems, psychologic problems and multiple orthopedic problems. His condition is stationary and slowly deteriorating. Treatment would not be beneficial. The overall combination of impairments make this man a total and permanent disability case in my opinion.”

At the hearing on January 24,1986, claimant testified that his condition had worsened after April 24,1984. He testified that, before that time, he had walked one or two miles daily but now could only walk one-half mile and, even then, only with pain. His testimony was corroborated by Keist’s chart notes. Claimant also described his increasingly disabling back pain. He testified that he avoids lifting grocery bags and any twisting, driving or walking down stairs and that, if he sits more than one hour, his leg gets numb. He lies down at least one hour daily to relieve pain and, due to his physical condition, he had had difficulty doing small engine repair work. His last job was in December, 1982. He continued to seek work in 1983, but sometime in 1984 had stopped looking because of his [369]*369increased knee and back pain and because, when he told employers of his physical limitations, they would not hire him.

Claimant’s vocational expert testified that claimant could no longer perform bench work, given his orthopedic restrictions, and that he would require additional training to do small electrical appliance repair work. That testimony is consistent with the medical evidence. Employer’s vocational expert testified that claimant might be able to do small engine or small appliance repair work, but her assumptions about claimant’s physical limitations were contrary to the medical evidence.

The referee concluded that claimant was permanently and totally disabled. He first found:

“He is certainly precluded from performing any of his previous occupations. However, without inclusion of his heart condition, no doctor has expressed an opinion that claimant is permanently and totally disabled. It is a close question but based on the evidence I find that claimant is not totally incapacitated by his pre-injury conditions and the residuals of his industrial injury.”

After considering non-medical factors, however, he found that claimant had proven permanent total disability:

“Considering claimant’s age of 65, his receipt of social security benefits for some time, not having worked for over three years and with his physical restrictions on lifting, bending, walking, standing and sitting because of his right knee and low back condition, I find claimant is permanently and totally disabled from working at a gainful and suitable occupation.”

He also found that claimant had demonstrated his willingness to re-enter the work force. After his initial injury, he had participated in retraining. He had worked until his heart attack and by-pass surgery and, after recovery, had returned to work until the economy and his physical condition worsened. The referee concluded that it would have been futile for claimant to continue to seek employment. The Board affirmed.

Employer argues that the Board erred in determining that claimant was totally and permanently disabled, because [370]*370his condition had not worsened after April, 1984,1 and he had not proved that he had sought work since that time. ORS 656.206(3).

To be entitled to an award of permanent total disability, a claimant must show that, since the last arrangement of compensation, the condition which gave rise to the original award has permanently worsened, Stepp v. SAIF, 304 Or 375, 381, 745 P2d 1207 (1987), and that, because of the worsened condition, he has suffered a total loss of earning capacity. Smith v. SAIF, 302 Or 396, 401, 730 P2d 30 (1986).

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Bluebook (online)
752 P.2d 340, 90 Or. App. 365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-edwards-heavy-equipment-inc-orctapp-1988.