Barrett v. D & H Drywall

715 P.2d 90, 300 Or. 553

• Court: Oregon Supreme Court
• Decided: March 4, 1986
• Docket: WCB 81-02757; CA A29349; SC S31782
• Status: Published

Opinion

JONES, J.

In Barrett v. D & H Drywall, 300 Or 325, 709 P2d 1083 (1985), we reversed a decision (on reconsideration) by the Court of Appeals, 73 Or App 184, 698 P2d 498 (1985). The employer and its insurer have filed a particularly vigorous and vehement petition for reconsideration. We allowed the Association of Workers’ Compensation Defense Attorneys to file an amicus curiae brief in support of the petition for reconsideration, and that brief “strongly” urges us to disavow our decision and change our minds as did the Court of Appeals.

The petition for reconsideration and the Defense Attorneys’ brief have convinced us not that our decision was wrong, but that it is misunderstood by petitioner and by amicus. We propose, therefore, only to restate the substance of our decision.

ORS 656.214(5) provides that the criterion for a rating of disability for permanent partial disability “shall be the permanent loss of earning capacity due to the compensable injury.” (Emphasis added.) This worker had a preexisting disease, osteoarthritis, in the area of his body that was injured in the accident with which we are here concerned. We have recognized that the Court of Appeals found as a fact that the disease was not worsened by the injury, 300 Or at 329 n 3, and we accepted that finding. Our decision does not require any award of compensation for that disease or for any disability that may have existed by reason thereof before the present compensable injury.

Apparently, a disease may produce symptoms although it has not worsened. See Weller v. Union Carbide, 288 Or 27, 602 P2d 259 (1979).¹ If, therefore, the accident described in Barrett v. D & H Drywall, 300 Or at 327 and 330, caused that disease to produce symptoms where none existed immediately prior to the accident, and 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.

1 This court said in Weller v. Union Carbide, 288 Or 27, 30 n 2, 602 P2d 259 (1979):

“We do not profess to understand how there can be a worsening of pain not produced by a concomitant worsening of the underlying pathological condition of the bodily tissue. * * *”