Bruce v. SAIF Corp.

942 P.2d 789, 149 Or. App. 190, 1997 Ore. App. LEXIS 960
CourtCourt of Appeals of Oregon
DecidedJuly 9, 1997
Docket93-07131; CA A93094
StatusPublished
Cited by1 cases

This text of 942 P.2d 789 (Bruce v. SAIF Corp.) 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
Bruce v. SAIF Corp., 942 P.2d 789, 149 Or. App. 190, 1997 Ore. App. LEXIS 960 (Or. Ct. App. 1997).

Opinion

HASELTON, J.

Claimant petitions for review of the Workers’ Compensation Board’s order on review, in which the Board found that claimant was not entitled to benefits for permanent total disability. ORS 656.206. We reverse and remand.

Claimant is a 42-year-old log truck driver, who has worked as a truck driver since he was 17 years old.1 On May 23, 1988, while claimant was driving a log truck for his employer, FJF Logging, Inc., the truck rolled off a cliff. Claimant suffered facial injuries, a closed head injury, as well as injuries to his upper and lower back, right knee, and right arm, and partial loss of his vision.

As a result of his closed head injury, claimant now suffers from post-traumatic stress syndrome, depression, severe memory loss, and cognitive defects. These conditions have left him unable to return to his prior work activities. A vocational counselor identified claimant’s post-injury transferable job skills as the ability to: (1) work in short cycle repetitive tasks; (2) work with things in a routine manner in a nonsocial environment; and (3) work with machines. The counselor concluded that there were some potential jobs that claimant could perform but found that, when he searched claimant’s geographical area, Baker City, for such jobs, none was available.

Claimant was awarded, inter alia, 88 percent unscheduled disability2 by a determination order. An order on reconsideration decreased the unscheduled disability award to 86 percent. Claimant appealed the order on reconsideration to an administrative law judge (AU), who concluded that claimant’s injury had left him permanently and totally disabled. ORS 656.206(l)(a).3 SAIF appealed the [193]*193ALJ’s order to the Board, and the Board reversed the ALJ’s order, concluding that claimant had not proven that he was permanently and totally disabled. Consequently, the Board reinstated the award of 86 percent unscheduled permanent disability.

On review, claimant raises two assignments of error. He first challenges the Board’s conclusion that he is capable of performing work in the light range.* **4 He argues that the Board erred in disregarding the testimony of one of his vocational expert witnesses, Huckfeldt, who rendered the opinion that claimant was limited to work in the sedentary range.5 The Board disregarded Huckfeldt’s opinion:

“The record does not support Huckfeldt’s belief that claimant is limited to sedentary work. Instead, the record supports the conclusion that claimant can perform work in the light category. Because Mr. Huckfeldt’s opinion is based on an incorrect belief that claimant was limited to sedentary work, we are not persuaded by his opinion regarding claimant’s employability.” (Exhibit numbers and footnote omitted.)

Substantial evidence supported the Board’s determination that claimant could perform light work and its consequent rejection of Huckfeldt’s opinion. ORS 183.482(8)(c). Accordingly, there was no error.

Claimant’s second assignment of error challenges the Board’s rejection of the testimony of his other vocational expert witness, Ross. Ross rendered an opinion that claimant was permanently and totally disabled, based on the “odd-lot” [194]*194doctrine. In Welch v. Banister Pipeline, 70 Or App 699, 701, 690 P2d 1080 (1984), we explained that doctrine:

“[UJnder [the ‘odd-lot’ doctrine,] a disabled person may remain capable of performing work of some kind but still be permanently disabled due to a combination of medical and non-medical disabilities, which effectively foreclose him from gainful employment. Such non-medical considerations include age, education, adaptability to non-physical labor, mental capacity and emotional condition, as well as the conditions of the labor market.”

Larson describes the “odd-lot” doctrine as

“the probable dependability with which claimant can sell his services in a competitive labor market, undistorted by such factors as business booms, sympathy of a particular employer or friends, temporary good luck, or the superhuman efforts of the claimant to rise above his crippling handicaps.” 2 Larson, Workmen’s Compensation Law, § 57.51,10-60 (1976) (cited with approval in Harris v. SAIF, 292 Or 683, 695, 642 P2d 1147 (1982)).

In other words, in determining whether a person is permanently and totally disabled under the “odd-lot” doctrine, the question is whether the claimant is currently “able to sell his services on a regular basis in a hypothetically normal labor market.” Harris, 292 Or at 695.

In concluding that claimant was permanently and totally disabled, Ross stated:

“I think in part it has to do with the labor market that he resides in. It is, as others describe it, tight, and that’s described even in the file material that I reviewed. It’s comprised primarily of mill work, logging, driving, and there’s a trailer manufacturer and small retail operations. Given the lack of skills and the nature and degree of both his physical and cognitive impairments, I don’t think he can find employment on a regular and sustained basis within that labor market.”

The Board said of this testimony:

“Ross based his opinion largely on the state of the labor market where claimant resides. Ross indicated that his opinion that claimant was permanently and totally disabled has to do with the labor market that [claimant] resides [195]*195in. It is, as others describe it, tight [* * *.]’ We have previously held that where a claimant has not found work because of the competitiveness of the labor market and the more limited labor market in the area where he lives, and not because he is unable to perform work, the worker has not sustained his burden of proof to show that he is permanently and totally disabled. Vivian F. Foltz, 43 Van Natta 119 (1991);[6] see also Mary J. Kamm, 47 Van Natta 1443 (1995) (vocational opinion found unpersuasive where it was based on a lack of job openings in a claimant’s geographical area rather than on whether the claimant was employable).[7]
“Because vocational expert Ross’ opinion is based, in part, on the ‘tight’ labor market where claimant lives, and not on whether he is currently able to sell his services on a regular basis in a hypothetically normal labor market, we do not find it persuasive.”

Claimant argues that the Board erred in failing to consider the chronically depressed nature of his labor market:

“The Board’s rejection of Mr. Ross’ opinion rests upon the idea that ‘employability' should be determined abstractly and without reference to local conditions. This is absurd. This claimant cannot find work that accords with his work limitations within the geographic area in which he resides. * * *

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Bluebook (online)
942 P.2d 789, 149 Or. App. 190, 1997 Ore. App. LEXIS 960, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bruce-v-saif-corp-orctapp-1997.