Chapel of Memories v. Davis

754 P.2d 913, 91 Or. App. 232

• Court: Court of Appeals of Oregon
• Decided: May 18, 1988
• Docket: WCB 86-06476; CA A44676
• Status: Published

Opinions

WARDEN, P. J.

In this workers’ compensation case, the Board ordered the claim reopened and the payment of temporary total disability (TTD) benefits. Employer petitions for judicial review, contending that claimant is not entitled to TTD benefits because he has withdrawn from the work force. On de novo review, we affirm.

Claimant sustained a low back injury in December, 1982, while working for employer as a grave digger. He has not worked since the injury. In April, 1984, he was awarded 60 percent unscheduled permanent partial disability benefits by a stipulated order. In May, and again in August, 1985, Dr. Smith, a neurologist, requested authorization from employer’s insurer, Wausau Insurance Companies (Wausau), to perform lumbar surgery. In October, Wausau denied the compensability of the surgery and also denied claimant’s aggravation claim. Claimant requested a hearing and, in March, 1986, a referee upheld the denial of the aggravation claim but set aside the denial of compensability of the surgery. The surgery was performed on May 1. Claimant then sought, and Wausau denied, claim reopening and TTD benefits for the period of his post-surgical convalescence. On August 15,1986, another referee ordered the claim reopened and awarded TTD benefits, a penalty and attorney fees. Employer requested Board review, and the Board affirmed and adopted the referee’s opinion and order.

Employer implicitly concedes that claim reopening was appropriate. Claimant has established that his condition worsened after, and as a result of, the surgery. See Gwynn v. SAIF, 304 Or 345, 353, 745 P2d 775 (1987). He is therefore entitled to have his claim processed to closure, when his disability will be reevaluated. ORS 656.268.

The disputed issue is whether claimant is entitled to TTD benefits during his post-surgical convalescence. Employer contends that he withdrew from the work force before his surgery and is therefore ineligible for TTD benefits.¹ To be entitled to TTD benefits, a claimant must sufficiently demonstrate a willingness to seek work. Cutright v. Weyerhaeuser Co., 299 Or 290, 300, 702 P2d 403 (1985).

Claimant is now 63 years old, has an eighth grade education and is hard of hearing. He stopped actively seeking employment in April, 1985. In the March, 1986, hearing, he testified that he had not looked for work since that time, because his back “botherfed him] so bad [sic] that [he] couldn’t.” He also testified that he was not retired. In the August, 1986, hearing, he again stated that he was not retired and also expressed his willingness to accept a job within his physical limitations. The medical evidence reveals that his back condition worsened in April, 1985, supporting an inference that he was physically unable to seek employment. ² Furthermore, his testimony that he had not withdrawn from the work force and would accept suitable employment was uncontroverted. Because that testimony, if believed, would show that he had not withdrawn from the work force, the issue of claimant’s credibility is crucially important. Both referees expressly found him credible, and we generally give great weight to the referee’s findings with respect to which credibility is an important issue. Bush v. SAIF, 68 Or App 230, 233, 680 P2d 1010 (1984).

On the basis of claimant’s uncontroverted and credible testimony and the facts and circumstances of this case, we agree with the referee and the Board and find that claimant had not withdrawn, either voluntarily or involuntarily, from the work force and is entitled to TTD benefits during his post-surgical convalescence.³

Affirmed.

1 Employer contends that the “retirement” issue was resolved in its favor in the March, 1986, hearing, thus barring relitigation of the issue in the August, 1986, hearing. However, whether claimant had withdrawn from the work force was not an issue in the first hearing. In the opinion and order, the referee stated:

“I make no prospective decision on whether, if Mr. Davis does elect surgery that I have approved, his condition will have sufficiently worsened as to require reopening, or whether he is otherwise not entitled to time loss at that time.”

Claimant was therefore not precluded from litigating the issue in the second hearing. See Consolidated Freightways v. Poelwijk, 81 Or App 311, 315, 726 P2d 379, rev den 302 Or 299 (1986).

2 In early April, 1985, Dr. Smith examined claimant and noted that his back condition had worsened. Smith recommended a myelogram and a CT scan, which were performed in late April. In May, after reviewing the results of those tests, Smith recommended that a lumbar laminectomy and decompression at L4-5 and L5-S1 be performed. In June, Dr. Matteri, an orthopedist, examined claimant and noted that claimant’s back condition had worsened somewhat. Matteri also stated that claimant was not then medically stationary. After reviewing the results of the myelogram and CT scan, Matteri was of the opinion that surgery would not benefit claimant. In August, after reviewing Matteri’s reports, Smith reiterated his opinion that the surgery would benefit claimant. As noted, employer denied the compensability of the surgery in October, the referee set aside that denial in March, 1986, and the surgery was performed on May 1. It thus appears that claimant was seeking authorization for the surgery from the time when he stopped seeking employment until it was actually performed.

3 In his opinion, the referee noted that claimant had applied for Social Security retirement benefits, possibly because we have previously relied on a claimant’s application for those benefits as a factor in determining whether, for purposes of workers’ compensation law, a claimant had retired. See Sykes v. Weyerhaeuser Co., 90 Or App 41, 750 P2d 1171 (1988); Karr v. SAIF, 79 Or App 250, 719 P2d 35, rev den 301 Or 765 (1986). The Social Security law contemplates that a person receiving benefits may continue working. At the present time, a person claimant’s age (over 62 but not yet 65 years of age) can earn approximately $6,000 annually and still be entitled to full Social Security retirement benefits. See 42 USC §§ 402,403; 20 CFR § § 415-417. The fact that a person has applied for or is receiving Social Security retirement benefits, although relevant, is not wholly dispositive in determining whether the person has withdrawn from the work force for the purposes of workers’ compensation law.