Nelson v. EBI Companies

666 P.2d 1360, 64 Or. App. 16, 1983 Ore. App. LEXIS 3247
CourtCourt of Appeals of Oregon
DecidedJuly 27, 1983
Docket81-1037; A25536
StatusPublished
Cited by5 cases

This text of 666 P.2d 1360 (Nelson v. EBI Companies) 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
Nelson v. EBI Companies, 666 P.2d 1360, 64 Or. App. 16, 1983 Ore. App. LEXIS 3247 (Or. Ct. App. 1983).

Opinions

[18]*18GILLETTE, P. J.

Claimant appeals from an order of the Workers’ Compensation Board that reversed a referee’s order awarding her 25 percent unscheduled permanent partial disability and reinstated a determination order that awarded her only 5 percent unscheduled disability. The Board held that claimant’s failure to continue a weight loss program recommended by her physicians was keeping her from recovering from her injury as fully as she otherwise would and downrated her degree of permanent partial disability accordingly. We affirm.

Claimant is a 30-year old certified nurse’s aid who sustained a lower back injury on June 18, 1979, when, in the course of her employment at a convalescent center, she attempted to grab a patient who fell while being moved from a wheelchair to a bed. Claimant is 5' 4" tall and, at the time of injury, weighed 300 pounds.

Dr. Stellflug, a chiropractic physician, initially treated claimant on June 20,1979. He diagnosed acute lumbar and cervical strains and, in his report of August 10,1979, noted that her obesity was prolonging her healing time. He referred her to Dr. Todd, an orthopedic surgeon, for evaluation. Dr. Todd’s evaluation report concluded that claimant had sustained an acute low back strain and that “her only source of help” was weight reduction.

In February, 1980, Dr. Stellflug referred claimant to Dr. Lautenbach, an internist. Dr. Lautenbach’s March 7,1980, report confirmed the earlier diagnoses, noted that she was suffering from anxiety depression and acknowledged that her healing process was hindered by her excessive weight. Dr. Pas-quesi examined claimant for evaluation on March 17,1980, at the request of respondent. At that time she weighed 290 pounds. Dr. Pasquesi found no objective cause for her symptoms “other than obesity and a large abdomen.” He did note, however, that her subjective symptoms were consistent with lumbosacral instability.

Apparently because of Dr. Pasquesi’s report, respondent requested further information from Dr. Todd, who stated in a report dated June 27,1980, that claimant had “concrete radiographic evidence of degenerative disc disease * * *” [19]*19and that she was “seriously working on a weight control program.” In April, 1980, Dr. Todd had arranged for an endo-crinological evaluation by Dr. Bouma. In his September 15, 1980, report Dr. Todd stated that Dr. Bouma had found claimant to be euthyroid, nondiabetic and not suffering from Cush-ing’s Syndrome; i.e., he found no physiological cause for her obesity.1

In October, 1980, claimant once again consulted with Dr. Lautenbach, who placed her on a 1,000 calorie per day diet and medication. On March 11,1981, Dr. Lautenbach reported that claimant had achieved a 37 and one-half pound weight loss. However, on July 21, 1981, prior to the hearing, Dr. Lautenbach signed a statement, prepared by respondent, that no further progress had been seen in claimant’s weight loss for two or three months, that she had lost any enthusiasm to proceed further' with the weight loss program and that her weight problem was completely within her control.2

[20]*20The Determination Order found that claimant had a 30 percent, unscheduled disability but awarded her only 5 percent, because the Evaluation Division believed that most of her disability was attributable to voluntary obesity.3 Claimant requested a hearing. The referee found that claimant’s excessive weight significantly contributed to her overall disability. He found, however, that her overall disability was probably in excess of 30 percent and rated disability due to the injury at 25 percent. He also found that claimant had not wilfully disobeyed her doctor’s orders and that she had shown that she had tried to lose weight.

The Board reversed the referee and reinstated the Determination Order, concluding that, “although claimant made some effort to lose weight, considering all the factors, it was not a reasonable effort.” In reaching its conclusion, the Board reasoned as follows:

“Resolution of the parties’ contentions requires a discussion of two fundamental but potentially inconsistent principles of workers compensation law. The first is that the employer takes the worker as he finds him; the second is that an injured worker has a duty to mitigate his or her damages. The principle that the employer takes the worker as he finds him is recognized in that a worker is entitled to compensation for the disabling effects of a pre-existing, nonindustrial condition, provided that the pre-existing condition and work activity combined to produce temporary or permanent disability or required medical services, and the work activity were [sic] a material contributing cause. Hoffman v. Bumble Bee Company, 15 Or App 253 (1973). The principle that an injured party has a duty to mitigate damages is recognized in that a worker is not entitled to an award of permanent disability to the extent that the worker unreasonably refuses treatment for a pre-existing condition where such treatment would reduce the extent of disability of the compensable condition. Brecht [21]*21v. SAIF, 12 Or App 615 (1973); Wilson v. Gilchrist Lumber Co., 6 Or App 104 (1971).”

The Board then applied these principles to the rating of disability of a compensable injury affected by obesity and concluded:

“(1) A worker is entitled to compensation when work activity interacts with obesity to cause an injury which results in permanent disability, provided that work activity was a material contributing cause for the injury; but (2) a worker is not entitled to compensation for disability attributable to obesity to the extent that (a) the evidence establishes that weight loss would reduce or eliminate the degree of disability, and (b) it is within the voluntary control of the worker to follow such medical advice and lose weight, and (c) the worker has not made a reasonable effort to follow such medical advice. We further conclude that, where a case involves the rating of disability and the issue is raised, the burden of proof is on the claimant to show that he or she did not unreasonably fail to follow the medical advice to lose weight.”

This court has had occasion to address an analogous problem. In Clemons v. Roseburg Lumber Co., 34 Or App 135, 137-38, 578 P2d 429 (1978), we identified

“* * * two threads running through our cases dealing with the effect upon compensation of unreasonable refusal to submit to medical treatment which might promote recovery and expedite reintegration into the labor market: one relating to proof and the other to restoration. The first emphasizes the burden upon the worker to prove the extent of disability. * * * The other line of cases treats refusal of available treatment as a negative factor in determining extent of compensable incapacity.” (Citations omitted.)

We stated in Clemons that the rationale for reduction of benefits when treatment is unreasonably refused is that an employer should not be held responsible for the full extent of a claimant’s permanent disability if there is significant likelihood that such disability is partly attributable to the claimant’s unreasonable rejection of appropriate treatment. Clemons also identified the corollary objective of the Workers’ Compensation Act to favor restoration of the worker over compensation for permanent loss. Clemons v.

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Related

SAIF Corp. v. VanBibber
227 P.3d 1224 (Court of Appeals of Oregon, 2010)
Lee v. Freightliner Corp.
712 P.2d 836 (Court of Appeals of Oregon, 1986)
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Nelson v. EBI Companies
674 P.2d 596 (Oregon Supreme Court, 1984)
Nelson v. EBI Companies
666 P.2d 1360 (Court of Appeals of Oregon, 1983)

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Bluebook (online)
666 P.2d 1360, 64 Or. App. 16, 1983 Ore. App. LEXIS 3247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-ebi-companies-orctapp-1983.