Pacheco v. State Accident Insurance Fund

580 P.2d 208, 34 Or. App. 979, 1978 Ore. App. LEXIS 2628

• Court: Court of Appeals of Oregon
• Decided: June 20, 1978
• Docket: No. WCB 76-5119, SAIF KD 149591, CA 10041
• Status: Published

Opinion

JOHNSON, J.

This is an appeal from the Workers’ Compensation Board order awarding claimant 50% permanent disability. The referee had awarded permanent total disability. Claimant was a farm worker who suffered a back injury when he fell off a hay wagon. The medical evidence consisted of the reports and deposition of claimant’s treating physician and also reports from a treating orthopedic surgeon. Both physicians found no objective symptoms of permanent disability. The treating physician concluded that claimant’s subjective symptoms were real and that he could not go back to heavy manual labor. The orthopedic surgeon’s reports could support an opposite conclusion. The referee made an express finding that claimant was a credible witness and he therefore believed his subjective symptoms. Both the referee and the Board found that the claimant "is precluded from doing heavy farm manual work.” The Board reduced the referee’s award on the grounds that claimant could be retrained for a more sedentary position. The undisputed evidence is that claimant is 54 years of age, has worked as a migrant farm worker all his life, and has received no formal education or training and cannot speak the English language.

We accept the conclusions of the referee and Board that claimant is unable to return to heavy manual labor. We cannot completely accept the Board’s reduction in compensation in view of claimant’s age and more particularly his total lack of education and inability to speak English. The order of the Board is modified to grant claimant an award of 240 degrees for 75% unscheduled permanent disability.

Affirmed as modified.