In the Matter of the Compensation of GETTMAN, Petitioner, v. STATE ACCIDENT INSURANCE FUND, Respondent.
WCB Nos. 78-4221 & 78-4222, CA 15318, SC 26853
Supreme Court of Oregon
Argued and submitted June 26, reversed and remanded to the Court of Appeals with instructions September 10, 1980
petition for rehearing denied October 14, 1980
289 Or 609 | 616 P2d 473
LENT, J.
Steven C. Yates, Evohl F. Malagon, and Malagon & Yates, Eugene, filed a brief amicus curiae for the Oregon Trial Lawyers Association.
LENT, J.
The issue in this workers’ compensation case is whether a claimant‘s potential for retraining justifies denying him an award of compensation for permanent total disability.
The record discloses the following undisputed facts. The claimant is a 59 year old man who worked as a laborer and park attendant for the Portland Parks Bureau for 27 years. On March 16, 1977, claimant suffered a back injury in a fall at work. The claimant could not return to his former job. On April 21, 1978, the Workers’ Compensation Department (Department) ordered State Accident Insurance Fund (SAIF) to pay claimant compensation equal to 35% permanent partial disability for the unscheduled back injury.
Claimant did not immediately request a hearing; rather he applied for vocational rehabilitation assistance, but the Department in August, 1978, refused to grant a referral to the Vocational Rehabilitation Division. Such a referral is necessary for a claimant tо receive authorized vocational rehabilitation services. See
In November 1978, the claimant requested a hearing before the Workers’ Compensation Board‘s (Boаrd) Hearings Division to consider, among other issues, the refusal to refer him for vocational training and the determination of the extent of his disability. A referee held a hearing on January 16, 1979, and issued an order that claimant was permanently tоtally disabled.
SAIF requested Board review and on July 24, 1979, the Board reduced the permanent total disability
The Court of Appeals affirmed without opinion. 44 Or App 295, 607 P2d 231 (1980). This court allowed review
Before turning to dirеct consideration of the issue posed, however, we should make clear what it is that we are doing. We do not review the evidence to arrive at independent findings of fact. Weller v. Union Carbide, 288 Or 27, 602 P2d 259 (1979); Sahnow v. Fireman‘s Fund Ins. Co., 260 Or 564, 491 P2d 997 (1971). The Court of Appeals, on thе other hand, not only reviews Board orders for errors of law but, also, exercises a fact finding function.
In Bowman v. Oregon Transfer Company, 33 Or App 241, 576 P2d 27 (1978) the Court of Appeals explained that it believed that little was to be gained by extended оpinions in workers’ compensation cases where the record presented only questions of fact. In Hoag v. Duraflake, 37 Or App 103, 585 P2d 1149 (1978) the Court of Appeals reaffirmed that it would not publish extended opinions in such cases. Since that time the Court of Appеals has often indicated that it had exercised only its fact finding function in workers’
We are aware that lawyers practicing in the field of workers’ compensation often resort to the Board‘s Orders on Review for guidanсe in representing clients at the administrative level. Those Orders are collected in an unofficial service, Van Natta‘s Workers’ Compensation Reporter, and the Order on Review in the case at bar may be found at 27 Van Nаtta 524. It could well appear to the bench, bar, public and Board that the Court of Appeals has approved the Board‘s erroneous concept of the law with respect to the place “potential for retraining” is to occupy in determining whether a worker is permanently totally disabled.1 For that reason we find allowing review is justified.
The relevant statute in this case is
“(a) ‘Permanent total disability’ means the loss, including preexisting disability, of use or function оf any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation. As used in this section, a suitable occupation is one which the worker has the ability and the training or experience to perform, or an occupation which he is able to perform after rehabilitation.”
The claimant argues that the Board reduced his award based on an erroneous interpretation of
“Taking into consideration claimant‘s age, work background, potential for retraining, the Board
concludes that he is entitled to an award equal to 60% of the maximum for his unscheduled disability.” (emphasis added)
The Court of Appeals in Leedy v. Knox, 34 Or App 911, 581 P2d 530 (1978) addressed a rеlated issue. In that case the claimant was found to be eligible for vocational rehabilitation. The Board affirmed the referee‘s decision to defer permanent disability benefits until claimant had completed or abandoned vocational rehabilitation efforts. The Court of Appeals reversed, holding that the legislative scheme required an award to be made based upon “then existing conditions.” 34 Or App at 921. The court noted that an award would be subject to review and adjustment when the claimant completed or abandoned the rehabilitation program.
In this case the claimant was found ineligible for vocational rehabilitation services, yet the Board reduced his award considering his “potential” for retraining.
The legislative provision in
As we have had occasion to note in the past, Inkley v. Forest Fiber Products Co., 288 Or 337, 345, 605 P2d 1175, 1179 (1980), the Board‘s misinterpretation of law may prejudice its findings of fact. Because we cannot ascertаin from the Board‘s order whether it would have reached the same result, in the exercise of its fact finding function, had it applied the correct rule of law, we believe, as we did in Inkley, that the matter must be remanded to the Board to cоnsider the evidence in light of this opinion.4
Reversed and remanded to the Court of Appeals with instructions to remand to the Workers’ Compensation Board.
LINDE, J., concurring.
In this case and in Rogers v. SAIF, also decided today, the court begins by dealing with the
As I understand it, the court reads explanations offered by the Court of Appeals in its published opinions and its statement of internal practices to mean that when thаt court only cites Bowman v. Oregon Transfer Company, 33 Or App 241, 576 P2d 27 (1978), its decision rests solely on its de novo review of the facts, and when it only cites a statute or another prior decision, this signals a decision based on an issue of law which this court may then wish to consider for possible review.
While the use of such citations can be deciphered even by the uninitiated, it leaves in doubt the basis of decision in a case such as the present, which was decided without any citation whatever. This leaves parties contemplating a possible petition for review and this court to speculate whether the decision hinged on a disputed legal question. Moreover, while the bare presence or absence of a citation may convey to specialists in a given field the implication that we draw from it here, cases are not tried or appealed only by specialists. Others need to be able to know whether a petition for review to this court would be a wasted gesture because the decision rests on a factual determination beyond review here, independent of any disputed legal issue. For these reasons it would be helpful, and рerhaps not incompatible with the need to forego opinions in purely factual disputes, to indicate by some brief formula beyond the mere omission of a citation that a legal issue raised by the losing party was not material to the decision. The opening and closing sentences of the brief notation in Hoag v. Duraflake, 37 Or App 103, 585 P2d 1149 (1978), cited by the court, shows how short such a formula can be.