Compensation of Hamlin v. Roseburg Lumber Co.

608 P.2d 1217, 45 Or. App. 581, 1980 Ore. App. LEXIS 2387

• Court: Court of Appeals of Oregon
• Decided: March 31, 1980
• Docket: WCB No. 77-7780, CA 15570
• Status: Published

Opinion

CAMPBELL, J.

Claimant appeals from an order of the Workers’ Compensation Board (Board) reversing the referee and denying claimant compensation for any permanent disability. We reverse and remand with instructions to reinstate the referee’s opinion.

This case has been before us previously in Hamlin v. Roseburg Lumber, 30 Or App 615, 567 P2d 612 (1977), wherein we held that claimant had sustained permanent disability as a result of her work-related worsening of a preexisting bronchial asthmatic condition. We need not recount the facts here. On remand, the Evaluation Division issued a Determination Order denying permanent disability. The referee reversed, awarding 160 degrees or 50 percent unscheduled disability. The Board, as noted above, reversed.

On the question whether claimant suffered permanent disability as a result of her industrial exposure to welding fumes, our decision in Hamlin v. Roseburg Lumber, supra, rendered in the same cause and on essentially the same state of facts,¹ is the "law of the case” and, therefore, controls. See Huszar v. Certified Realty Co., 272 Or 517, 538 P2d 57 (1975); Marr v. Putnam, 213 Or 17, 321 P2d 1061 (1958); Vanderzanden v. Sexson, 27 Or App 139, 555 P2d 946 (1976).

The remaining question is the extent of claimant’s permanent disability. The referee evaluated claimant’s disability at 65-70 percent, but attributed part of that disability to the natural progression of her preexisting condition. Thus, he awarded claimant 50 percent disability. On review of the record, we concur.

Reversed and remanded with instructions to reinstate the referee’s order.

1 The referee noted that "the only new evidence in this case is Dr. Tuhy’s opinion” and that "Dr. Tuhy’s opinion has [not] added greatly to this matter.” Dr. Tuhy did speculate for the first time that a bout with pneumonia in early 1972, rather than welding fumes, may have precipitated claimant’s condition.