Offill v. Greenberry Tank & Iron Co.

921 P.2d 1342, 142 Or. App. 351, 1996 Ore. App. LEXIS 1093
CourtCourt of Appeals of Oregon
DecidedJuly 31, 1996
DocketWCB No. 94-01628; CA A88433
StatusPublished

This text of 921 P.2d 1342 (Offill v. Greenberry Tank & Iron 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
Offill v. Greenberry Tank & Iron Co., 921 P.2d 1342, 142 Or. App. 351, 1996 Ore. App. LEXIS 1093 (Or. Ct. App. 1996).

Opinion

RIGGS, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board that reduced his award of unscheduled permanent partial disability pursuant to OAR 436-35-007(3)(b). The rule provides, in part:

“A worker is not entitled to be doubly compensated for a permanent loss of earning capacity in an unscheduled body part which would have resulted from the current injury but which had already been produced by a prior injury and had been compensated by a prior award. Only that portion of such lost earning capacity which was not present prior to the current injury shall be awarded. The following factors shall be considered when determining the extent of the current disability award:
“(A) The worker’s total loss of earning capacity for the current disability under the standards;
“(B) The conditions or findings of impairment from the prior award which were still present just prior to the current claim;
“(C) The worker’s social-vocational factors which were still present just prior to the current claim; and
“(D) The extent to which the current loss of earning capacity includes impairment and social-vocational factors which existed before the current injury.”

Claimant suffered an injury to the back and neck in 1986, for which he received compensation for 25 percent unscheduled permanent disability. Following that injury, claimant was restricted from heavy labor. The administrative law judge (ALJ) in this proceeding found that the restriction was the basis for the 25 percent award, and that determination is not challenged on review. In March 1993, claimant suffered the low back injury that gives rise to the presently disputed permanent disability award. The parties agree that claimant’s permanent disability under present disability standards is 18 percent. Insurer contended that the award should be reduced pursuant to OAR 436-35-007(3)(b) in the light of the prior 25 percent award for the 1986 injury.

[354]*354The AU found that claimant had made a full recovery from the 1986 injury and did not authorize an adjustment. The Board adopted all of the ALJ’s findings; however, in the “Conclusions of Law and Opinion” portion of its order, it also said:

“[T]he Referee concluded that claimant’s 1986 low back injury was no longer disabling at the time of his 1993 injury (i.e., claimant made a full recovery from the impairment condition rated for disability in the 1986 claim). Thus, the Referee concluded that claimant’s current extent of disability in his low back was completely attributable to the 1993 injury. We disagree.
“Following the 1986 injury, Dr. Tiley restricted claimant from heavy work. There is no indication that the ‘heavy labor’ restriction was ever removed. However, at the time of the March 1993 injury, claimant was again performing heavy work. Subsequent to the 1993 injury, claimant’s treating physician, Dr. Lax (neurological surgeon), permanently restricted claimant from heavy labor.
“Despite being restricted from heavy work following the 1986 injury, claimant was again performing heavy work at the time of his 1993 injury. Inasmuch as there is no evidence that the earlier restriction against performing heavy labor had been removed, we find that claimant’s current restriction from heavy work was previously considered and compensated by the 1986 permanent disability award.”

Thus, despite its general adoption of the ALJ’s findings, the Board expressly rejected the ALJ’s determination that the disability caused by claimant’s first injury had resolved before his second injury. The Board’s finding is supported by substantial evidence.

The Board also considered and rejected claimant’s contention that OAR 436-35-007(3)(b) is inconsistent with ORS 656.222, as we have interpreted that statute in City of Portland v. Duckett, 104 Or App 318, 801 P2d 847 (1990), rev den 311 Or 187 (1991), because it authorizes offsets in cases involving unscheduled disability. It held that the administrative rule authorized an offset for the previous unscheduled permanent disability award that claimant had received for his low back.

[355]*355ORS 656.222 provides, in part:
“Should a further accident occur to a worker who is receiving compensation for a temporary disability, or who has been paid or awarded compensation for a permanent disability, the award of compensation for such further accident shall be made with regard to the combined effect of the injuries of the worker and past receipt of money for such disabilities.”

The statute and the administrative rule are not facially inconsistent. The statute deals with all awards of compensation made to a worker who is receiving or who has received compensation for disability. With respect to a subsequent award, the statute requires consideration of the “combined effect” of the worker’s injuries and the past receipt of money for those disabilities and does not restrict its application to scheduled injuries. The administrative rule expressly addresses unscheduled permanent disability only and requires that the second or subsequent award not compensate for disability that, although it could have been caused by the second injury, was in fact caused by the first injury and for which the worker has already received compensation.

Despite the absence of any facial inconsistency between the rule and the statute, claimant asserts that in Duckett, we limited the application of the statute to injuries involving scheduled disability, and that the rule therefore exceeds the scope of the statute. In Duckett, we affirmed a Board order holding that ORS 656.222 did not permit an adjustment of a second award for scheduled disability, because, before the second injury, the claimant had fully recovered from a first injury to a scheduled body part and there was no “combined effect” of the previous and the current injury, as required by the statute. Citing American Bldg. Maint. v. McLees, 296 Or 772, 679 P2d 1361 (1984); Nesselrodt v. Compensation Department, 248 Or 452, 435 P2d 315 (1967), and Cain v. State Ind. Acc. Comm., 149 Or 29, 37 P2d 353 (1934), we noted in dictum that the statute applies only to cases involving scheduled disability.

Before Duckett, in Thomason v. SAIF, 73 Or App 319, 698 P2d 507 (1984), rev den 299 Or 443 (1985), we were faced squarely with the question of whether ORS 656.222 [356]*356applies to cases involving unscheduled disability. Referring to the same Supreme Court opinions that we later cited in Duckett, we held in Thomason that ORS 656.222 is applicable in the context of injuries causing unscheduled disability. Our dictum in Duckett is inconsistent with our earlier holding in Thomason.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Green v. State Industrial Accident Commission
252 P.2d 545 (Oregon Supreme Court, 1953)
Nesselrodt v. STATE COMPENSATION DEPARTMENT
435 P.2d 315 (Oregon Supreme Court, 1967)
American Building Maintenance v. McLees
679 P.2d 1361 (Oregon Supreme Court, 1984)
Cain v. State Industrial Accident Commission
37 P.2d 353 (Oregon Supreme Court, 1934)
Norby v. Saif Corp.
738 P.2d 974 (Oregon Supreme Court, 1987)
Thomason v. SAIF Corp.
698 P.2d 507 (Court of Appeals of Oregon, 1985)
City of Portland v. Duckett
801 P.2d 847 (Court of Appeals of Oregon, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
921 P.2d 1342, 142 Or. App. 351, 1996 Ore. App. LEXIS 1093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/offill-v-greenberry-tank-iron-co-orctapp-1996.