538 P.2d 943 | Or. Ct. App. | 1975
Compensability of claimant’s asserted back injury was denied by SAIF. It was also denied, after hearing, by the referee and, upon review, by the Workmen’s Compensation Board. The circuit court reversed and held the claim compensable. This appeal by SAIF resulted. We reverse.
Claimant, 32, claimed to have hurt his back when, at work in his employment on August 28, 1973, he jumped three or four feet from a window to the ground. At that time claimant stated he felt a sudden pain, like a punch in the back. Although other workers were present, claimant did not complain or mention any injury at that time. He continued working for the remaining hour in the work day. He did not return to this employment again. His wife testified that she called in the following day to say that he had hurt his back and would try to be in the following day. She did not claim that she had said that claimant hurt his back at work. Dr. Mueller, who treated claimant, relied on the history claimant gave him and originally noted a causal connection between the claimed injury and the lumbosacral sprain. He later stated that he found “considerable functional overlay” during claimant’s hospitalization in September 1973. Dr. Mueller ultimately concluded only that claimant’s complaints and symptoms were “consistent with the type of injury which he claims to have occurred * *
Claimant has a history of low back problems extending over the last 13 years, beginning with his release from military service in 1961. During 1972 he
The hearing referee did not believe claimant. He stated in his opinion:
“The Referee concludes that claimant did exit the building by way of the window, but he was not hurt. His physical examinations were essentially negative. It would appear that the lack of objective findings caused Dr. Mueller to conclude that he could only state that his findings were consistent with the type of injury which claimant claims to have incurred.”
The burden is upon the claimant to establish the validity of his claim. He must initially show that an industrial injury occurred. The referee found that claimant failed in his proof. The referee’s finding as to credibility based upon conflicting testimony as well as his observation of claimant and the other witnesses, when coupled with the uncertainty of the medical evidence, leads us to conclude that the circuit court was in error in determining that claimant’s claim was compensable.
Reversed.