Rossi v. Zidell Explorations, Inc.

595 P.2d 512, 40 Or. App. 417, 1979 Ore. App. LEXIS 2150

• Court: Court of Appeals of Oregon
• Decided: May 29, 1979
• Docket: No. 77-498, CA 11808
• Status: Published

Opinion

LEE, J.

In this Workers’ Compensation case claimants’ decedent sustained a compensable back injury on August 21, 1975, underwent a laminectomy December 3, 1975, and died of unrelated lung cancer on July 19, 1976. On September 16, 1976, a determination order was issued which granted temporary total disability from September 2, 1975, through July 19, 1976, without any award for permanent partial disability. The only issue is whether the worker’s beneficiaries are entitled to an award pursuant to ORS 656.218(2).¹

The worker’s treating physician stated that:

"* * * What percentage of the partial and perhaps permanent disability [deceased] might have exhibited had he not been totally disabled by his cancer is a matter of speculation * *

There is no other medical evidence to show what, if any, residuals or physical impairment the deceased would have had from his injury and surgery. Claimants have failed to carry their burden of proof.

Affirmed.

1 ORS 656.218(2) provides:

"If the worker’s death occurs prior to a determination having been made under ORS 656.268, the State Accident Insurance Fund or direct responsibility employer shall so notify the director and request the claim be examined and compensation for permanent partial disability, if any, be determined.”