Velasquez v. State Accident Insurance Fund

556 P.2d 972, 27 Or. App. 429, 1976 Ore. App. LEXIS 1469

• Court: Court of Appeals of Oregon
• Decided: November 22, 1976
• Docket: No. A-76-02-01680, CA 6561
• Status: Published

Opinion

THORNTON, J.

State Accident Insurance Fund (SAIF) appeals from an order of the circuit court reversing the hearings referee and the Workmen’s Compensation Board and increasing claimant’s award from 120 for 37.5 percent unscheduled low back disability to permanent total disability. The court based its ruling on the conclusion that claimant’s disability fell within the odd-lot category.

In August 1970 claimant slipped and fell in the kitchen of her husband’s restaurant, where she worked as a waitress. Her disability was specifically attributed by the reviewing physician to mechanical low back pain estimated at 30 percent impairment. She is 40 years of age and has a verbal I.Q. in the above normal range.

Evidence of motivation to seek and work at gainful employment is necessary to establish a prima facie case of odd-lot status under the facts of this case. Deaton v. SAIF, 13 Or App 298, 509 P2d 1215 (1973). Based upon our de novo review of the record, we conclude that the claimant lacks the requisite motivation to return to work, and that the referee’s award, affirmed by the Board, is correct.

Reversed.