Foster v. State Accident Insurance Fund

485 P.2d 407, 259 Or. 86, 1971 Ore. LEXIS 357
CourtOregon Supreme Court
DecidedMay 26, 1971
StatusPublished
Cited by14 cases

This text of 485 P.2d 407 (Foster v. State Accident Insurance Fund) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foster v. State Accident Insurance Fund, 485 P.2d 407, 259 Or. 86, 1971 Ore. LEXIS 357 (Or. 1971).

Opinions

HOLMAN, J.

Claimant injured his shoulder and arm while working for an employer covered by the State Accident Insurance Fund. He was awarded a scheduled disability equal to 15 per cent loss of use of an arm. Claimant asked for a hearing. The hearing officer increased the scheduled award to 25 per cent loss of use of an arm and denied a request for an additional award for unscheduled disability to the shoulder. The Workmen’s Compensation Board and the circuit court both affirmed the award. Upon appeal to the Court of Appeals, that court, in addition to the scheduled disability for the loss of use of the arm, awarded an unscheduled disability for injury to the shoulder equal to 25 per cent loss of use of an arm.

Claimant filed a petition for rehearing pursuant to which the Court of Appeals modified its original opinion by awarding “30 per cent of a man (96 degrees).” The number of degrees was, in fact, equal to the degrees of disability previously awarded by the Court of Appeals, but the award was changed [88]*88from partly scheduled and partly unscheduled to an entirely unscheduled one for the injury to the shoulder. This change was based upon (1) a factual finding that claimant’s arm suffered no permanent traumatic disability and that its existing disability was a referred one resulting from injury to his shoulder; and (2) the court’s belief that the modification of OES 656.214 (4) by Oregon Laws 1967, ch 529, p 1211, required only unscheduled disability to be awarded where injury to an unscheduled portion of the body resulted both in disability to that portion and in referred disability to a scheduled member. Claimant filed a petition for review with this court, which was granted.

1. The sole claim of error raised on review is that the court erred in denying claimant a scheduled award-in addition to the unscheduled one he was given.

We interpret the facts as did the Court of Appeals. We believe that claimant’s arm suffered no permanent injury and that the existing disability of the arm is referred from the injury to claimant’s shoulder. The claim of error brings into question an issue identical with the one which was considered in Surratt v. Gunderson Bros. Engineering Corp., 259 Or 65, 485 P2d 410 (1971), decided this date, and Walker v. Compensation Department, 248 Or 195, 432 P2d 1018 (1967). However, subsequent to the occurrence of the injuries in Surratt and Walker, the statute relating to awards for permanent partial unscheduled disability was modified. The claimant’s injury in this case occurred after the effective date of the amendment. Before the amendment, the statute, OES 656.214 (4), read as follows:

“In all other cases of injury resulting in permanent partial disability, the number of degrees of disability shall be computed by determining the [89]*89disabling effect of such, injury as compared to the loss of any member named in the schedule in this section, not exceeding, however, 192 degrees.”

By way of the amendment, the statute now reads:

“In all other cases of injury resulting in permanent partial disability, the number of degrees of disability shall be a maximum of 320 degrees determined by the extent of the disability compared to the workman before such injury and without such disability.”

We have held, in cases where the accident occurred prior to the statutory amendment, that awards are made for disability and that a disability to a scheduled portion of the body is always treated as a scheduled disability, even when that disability is referred from an injury to an unscheduled portion. Surratt and Walker, supra. The question here is whether the change in the statute requires that such a referred disability be treated as if it were unscheduled.

The problem is caused by the new statutory language which requires unscheduled disability to be compared “to the workman before such injury and without such disability.” Upon superficial examination, it might be concluded that, because the injury is to an unscheduled portion of the body and the disability is being compared with the ability of the entire body, the entire disability should be treated as unscheduled. It might also be concluded that comparing the arm disability with a good arm and then comparing the shoulder disability with claimant’s condition before the injury, at which time he had two good arms, results in a duplication or an incongruity. However, we do not believe the foregoing to be so. Evaluating an unscheduled disability separate and apart from a scheduled disability and comparing it with an arbitrary yard[90]*90stick composed of another part of the body for the purpose of evaluating it in terms of money has been the statutory formula for years. We see no difference here despite the fact that the arbitrary yardstick for measuring the monetary value of an unscheduled disability has been changed to include the entire body and, thus, a scheduled part of the body for which the disability has already been evaluated. The yardstick is relevant only for the purpose of reducing the extent of disability to dollars and not for the purpose of determining the extent of the disability. See W. C. Smith, Principles of Disability Evaluation, pp 116-17.

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Foster v. State Accident Insurance Fund
485 P.2d 407 (Oregon Supreme Court, 1971)

Cite This Page — Counsel Stack

Bluebook (online)
485 P.2d 407, 259 Or. 86, 1971 Ore. LEXIS 357, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foster-v-state-accident-insurance-fund-or-1971.