Corley v. Weyerhaeuser Co.

581 P.2d 958, 35 Or. App. 449, 1978 Ore. App. LEXIS 2839
CourtCourt of Appeals of Oregon
DecidedAugust 1, 1978
DocketWCB No. 77-3600, CA 10212
StatusPublished

This text of 581 P.2d 958 (Corley v. Weyerhaeuser Co.) 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
Corley v. Weyerhaeuser Co., 581 P.2d 958, 35 Or. App. 449, 1978 Ore. App. LEXIS 2839 (Or. Ct. App. 1978).

Opinion

THORNTON, J.

In this worker’s compensation case the employer appeals from an award of permanent and total disability to claimant, contending that the referee and the Workers’ Compensation Board (Board) failed to take into consideration evidence tending to show that claimant was not in fact totally disabled and that he lacked motivation to seek light, gainful employment.

The referee concluded that claimant was permanently and totally disabled. The employer appealed to the Board. The Board affirmed, adopting in toto the referee’s opinion.

The evidence relied upon by the employer may be summarized as follows:

Claimant, then 45 years old, sustained a compensable injury in employer’s plywood mill on December 7, 1972, when he slipped and fell, twisting his left leg and ankle. He was seen initially by Dr. J. E. Abbott, and was subsequently referred to Dr. C. D. Adams, who performed a medial menisectomy on January 30, 1973, with reefing of the medial collateral ligament. On June 12, 1974, a left lumbar sympathectomy was performed by Dr. William H. Massey.

Claimant was examined at the Disability Prevention Division of the Workers’ Compensation Board in September 1974 by Dr. Lewis A. Van Osdel, who made the following diagnosis:

«a * * * * *
"(1) Status post-arthrotomy, left knee, with excision of the medial meniscus, reefing of the medial collateral ligament, with resultant loss of 5° of extension and 10° of flexion, and with slight instability of the anterior cruciate and medial collateral ligaments, with moderate weakness of the quadriceps.
"(2) Sympathetic reflex dystrophy, treated by left lumbar sympathectomy, June 12,1974, with warm, pink foot and dry skin, with the osteoporosis improved.
[452]*452"(3) A chronic synovitis of the left knee is present, along with a chronic bursitis of the infrapatellar bursa on the left.
"(4) A moderately severe anxiety reaction with depression is deemed present by the Clinical Psychologist.
"b. Diagnoses not due to the industrial injury but deemed pertinent:
"(1) Possible hypertensive cardiovascular disease, with blood pressure 150/80, with harsh Grade m/VI systolic-diastolic murmur at the apex, radiating up along the left sternal border, with a history of two mild myocardial infarctions in the past. The heart rate was 104.
"(2) Chondromalacia, patella, bilateral.”

In his "comments,” Dr. Van Osdel added the following opinion:

«* * * 'j'hjg examiner strongly feels that this patient could have rehabilitated his knee, a long time ago, had he had psychological counseling and therapy concomitant with an attempt to rehabilitate his knee. Although he is a chronic complainer, when he is sitting down there is no apparent evidence of any persistent pain, although he frequently complains of same. In addition, he was advised to see the examiner, at any time that his knee was swollen or there was any abnormal change, but he never came in except to ask for medications. However, he complained quite freely of swelling to the therapists but no measurements were taken. Consequently, the examiner feels that he was trying to impress those about him with the severity of his condition. He apparently does not realize that he has a veiy active part in getting better.”

On September 23, 1974, claimant was seen by George A. Gurski, a rehabilitation counselor with the Division of Vocational Rehabilitation. Mr. Gurski’s report of that date indicates that

«* * * Mr. Corley declined to sign an application for services at this time stating that he did not feel physically able to tolerate any type of employment in his current condition. * * *
[453]*453"Mr. Corley was given the address and the telephone number of our office in Coos Bay and was informed that he should contact that office should he wish to make application for services from the Vocational Rehabilitation Division at a later date.”

On October 21, 1974, claimant was seen by Dr. D. W. Rich with regard to possible complications of the knee injury. In his report of November 8, 1974, Dr. Rich mentioned complaints of "chronic recurrent low back pain after sitting or standing for any prolonged time.” He added that the back problem was "kept under fair control by means of conservative treatment including a lumbosacral support.”

Claimant received a notice of an appointment made for him presumably by Dr. D. S. Wisdom at Portland Pain Clinic but did not keep it, saying that after he received the notice he called Dr. Wisdom’s office and was told by a girl in the office that Dr. Wisdom had not made an appointment for him. He did not call the Pain Clinic to verify the appointment.

In November 1974, at the suggestion of two different doctors, according to the testimony of claimant’s wife, they moved to Arizona. Subsequently they moved to Palm Springs, California, and except for intermittent trips back to Oregon, remained there until approximately April 1,1977. While in California, claimant, at the instance of the employer, was referred to Dr. Leonard Kalfuss in Palm Springs for orthopedic evaluation. On September 27, 1976, claimant underwent surgery by Dr. Kalfuss for the removal of a retropatellar fat pad. He was last seen by Dr. Kalfuss on March 17, 1977, at which time Dr. Kalfuss characterized claimant’s condition as follows:

"* * * He is able to walk without any cane or crutch for the first time since his injury since 1972. He advised me furthermore that he has some discomfort in his low back when he sits for too long or rides in an automobile. His symptoms in his back have been unchanged throughout this period of time. The patient has some residual difficulty with the left knee. He has advised me the [454]*454operation did help him at least 50% and that he does not have the pain where he points to about the patella tendon. He has generalized aching about the anterior aspect of the knee which appears to be behind the patellar itself. He has some soreness and aching when he walks in excess of one block. His right knee pops but it does not cause him any particular pain. Of course he has the same symptoms with his right lower extremity as before my surgery which he believes is related to the nerve operation in his back. Denies any swelling, giving out, buckling, locking or limitation in motion in his left knee.
* * * *
"* * * Generally, this patient is no longer using a cane or crutch and I have encouraged him not to do so. * * * 99

Dr. Kalfuss was of the opinion that claimant could not return to his former work as a plywood grader, but did indicate that he "should be rehabilitated to some form of gainful employment.”

Claimant does not wear a knee brace or an elastic bandage. After sitting for a period of time, claimant’s symptoms are relieved if he is able to stand up and move about. He takes Tylenol 3 on an irregular basis, whenever he thinks he may need one.

When last seen by Dr.

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Related

Wilson v. Weyerhaeuser Co.
567 P.2d 567 (Court of Appeals of Oregon, 1977)

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Bluebook (online)
581 P.2d 958, 35 Or. App. 449, 1978 Ore. App. LEXIS 2839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corley-v-weyerhaeuser-co-orctapp-1978.