Matter of Compensation of Condon

629 P.2d 1324, 52 Or. App. 1043, 1981 Ore. App. LEXIS 2880

• Court: Court of Appeals of Oregon
• Decided: June 29, 1981
• Docket: WCB 79-8395, CA 19561
• Status: Published

Opinions

VAN HOOMISSEN, J.

Claimant sustained an injury to his right knee which his self-insured employer maintains was not job-related. A referee found the injury occurred on the job and ordered compensation paid. The Workers’ Compensation Board (Board) reversed the referee and claimant appeals. The sole issue is compensability. On de novo review, we reinstate the referee’s order.

Claimant, a felon on parole, was employed as a temporary laborer by the Portland Bureau of Parks. He had surgery on his knee in 1978, but it was described as stable at the time of his employment by his father, a physician. Claimant testified that while at work on July 4, 1979, he slipped while lifting a plastic liner from a trash barrel, and his right leg slid sideways causing some pain to the knee. He continued working, but later on the same day, while he was shooting basketball with a co-worker, his knee collapsed. He received treatment for the injury and was told by his orthopedist to wear an immobilizer brace. Thus equipped, he was able to continue working until August 12, 1979, when his knee collapsed again while he was playing basketball. Claimaint filed a claim with his employer the next day, alleging that the July 4 injury was the cause of August 12 collapse. He underwent knee surgery August 15, 1979.

There are some inconsistencies in the statements made by claimant about the July 4 incident. He told his father, who first examined the injured knee, that he injured it while lifting the trash liner. He also gave this account to Wes Stoecker, a co-worker, the following day. However, he told the treating orthopedist, Dr. Cherry, that his injury occurred while he was playing basketball. His work supervisors were merely informed that he had injured his knee; they were not told that the injury was job related.

He accounts for these apparent inconsistencies by explaining that seeming a job and maintaining employment were conditions of his parole, and, because he had been warned that his unstable work history could result in his being returned to prison, he did not want to jeopardize his employment by claiming an on the job injury.

In this case, the credibility of the claimant is of crucial importance. The referee found that the claimant’s explanation for his failure to report the injury immediately and for the inconsistencies in his accounts of the injury was plausible. The Board found the record established claimant’s testimony was not credible because of the inconsistencies and expressed doubt as to whether the trash barrel incident had ever occurred.

Claimant urges that great weight should be given the referee’s findings. This court generally does give great weight to the referee’s findings, especially where credibility is an important issue. Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981); Widener v. La-Pac Corp, 40 Or App 3, 594 P2d 832, rev den 287 Or 129 (1979).

Our review of the record satisfies us that claimant’s account of how the injury occurred is plausible, and his explanation of his inconsistent statements is not unreasonable. Claimant’s co-worker on July 4, now his spouse, testified that, while she did not see him fall, she did hear a noise and looked up to see claimant lying on the ground next to an overturned trash barrel. Claimant’s father testified that his son told him of the trash barrel incident the evening of the day it had occurred. Claimant’s co-worker, Stoecker, testified that claimant told him on July 5 that he had hint his knee while emptying a trash barrel. Medical evidence indicates that claimant sustained an injury to his knee on July 4 and that the injury was consistent with claimant’s account of his fall while emptying a trash barrel. The medical evidence also supports a finding that the collapse of claimant’s knee on August 12 was the result of the July 4 injury, not the earlier injury, .and no evidence was offered to the contrary.

We therefore conclude that claimant’s knee injury is compensable. The order of the Board is reversed.

Reversed.