Laymon v. SAIF Corp.

• Decision Date: 12 October 1983
• Citation: 670 P.2d 211,65 Or.App. 146
• Parties: In the Matter of the Compensation of Della A. Laymon, Claimant. Della A. LAYMON, Petitioner, v. SAIF CORPORATION, Respondent. 80-10479; A26297. . *
• Court: Oregon Court of Appeals

Page 211

670 P.2d 211

65 Or.App. 146

In the Matter of the Compensation of Della A. Laymon, Claimant Della A. LAYMON, Petitioner, v. SAIF CORPORATION, Respondent.

80-10479; A26297.

Court of Appeals of Oregon In Banc. ^*

Argued and Submitted May 25, 1983.

Resubmitted In Banc Sept. 9, 1983.

Decided Oct. 12, 1983.

Janet A. Metcalf, Portland, argued the cause for petitioner. With her on the brief were English & Metcalf, Larry K. Bruun and Welch, Bruun & Green, Portland.

Darrell E. Bewley, Appellate Counsel, State Acc. Ins. Fund Corp., Salem, argued the cause and filed the brief for respondent.

VAN HOOMISSEN, Judge.

Claimant appeals from an order of the Workers' Compensation Board that reduced the referee's award of permanent total disability. We review de novo.

Claimant concedes that physical incapacity alone has not rendered her permanently and totally disabled. She is therefore required to show a reasonable effort to obtain employment before she is qualified for permanent total disability, ORS 656.206(3), ¹ unless she can show that she is completely incapacitated and that it would be futile for her to attempt to become employed. See Morris v. Denny's, 50 Or.App. 533, 623 P.2d 1118 (1981); Butcher v. SAIF, 45 Or.App. 313, 608 P.2d 575 (1980). She contends that she is excused from the requirements of ORS 656.206(3).

The referee stated:

"Considering the medical and nonmedical factors, I conclude that there is no realistic likelihood based upon existing occupational abilities that claimant will be able to sell her services to any employer and therefore find she is permanently and totally disabled."

On review, the Board adopted the referee's findings of fact. It concluded, however:

"Although we agree with the Referee that claimant suffers from some serious social/vocational obstacles to employability, we do not believe that they are serious enough, when combined with her fairly moderate impairment (moderate enough that no physician believes that surgery is warranted) that permanent total disability is warranted. All of claimant's treatment for her injury has been conservative, and all of claimant's physicians agree that claimant is physically capable of doing some form of work. Claimant has been successfully retrained for an occupation suitable to her physical restrictions, but she has made minimal efforts to find work. We do not find the record to indicate that claimant is excused from the ORS 656.206(3) seek-work requirement by Butcher v. SAIF, 45 Or App 313 (1980)."

Accordingly, after considering the referee's findings and all other relevant evidence, the Board reduced claimant's award to 70 percent permanent partial disability.

We agree with the Board that the record does not support the referee's finding that it would be futile for claimant to seek employment. All of the treatment for her injury has been conservative. All of her doctors agree that she is physically capable of doing some form of work. She was enrolled in a vocational rehabilitation program where she progressed satisfactorily and completed the course with high marks for speed and dexterity. The Field Services Division regarded her as rehabilitatable and able to make at least a part-time income. She is neither illiterate nor inarticulate. She is an avid reader. She would not be precluded from light work requiring simple written instructions or verbal communications. Her limited formal education is but one indicator of her ability. We have denied permanent total disability to claimants with limited formal education when that deficiency had little or no impact on other indicators of ability. See Owen v. SAIF, 33 Or.App. 385, 576 P.2d 821 (1978); Williams v. SAIF, 20 Or.App. 208, 530 P.2d 1255 (1975).

In a factually similar case, Home Ins. Co. v. Hall, 60 Or.App. 750, 654 P.2d 1167 (1982), rev. den. 294 Or. 536, 660 P.2d 682 (1983), the claimant was a 57-year-old woman with a tenth-grade education and no special job skills. She contended that her physical condition plus other non-medical factors rendered her permanently and totally disabled. We held that she had failed to prove that she was excused from the requirements of ORS 656.206(3). Likewise, the totality of the evidence here does not persuade us that claimant is excused from the requirements of ORS 656.206(3).

Affirmed.

NEWMAN, Judge, dissenting.

I dissent and would reinstate the referee's award. After considering claimant's physical restrictions in conjunction with nonmedical factors, such as her age, limited education, limited employment experience and limited transferable skills, the referee concluded that

" * * * there is no realistic likelihood based upon existing occupational abilities that claimant will be able to sell her services to any employer and therefore find she is permanently and totally disabled."

Claimant, 52 years old, slipped and fell while working as a cook, breaking her sacrum and right middle finger in July, 1978. The fractures healed with bed rest, but claimant developed headache and pain on the left side of her body and in her left shoulder and cervical area. She has seen numerous physicians and undergone extensive testing and evaluation. In July, 1979, at the insurer's request, she was seen by Dr. Pasquesi. At that time, she was receiving physical therapy three times a week and chiropractic treatments twice a week and was wearing a low back brace. Dr. Pasquesi noted that x-rays submitted for the examination revealed extensive degenerative changes in both the lower lumbar area and the cervical spine area. He also stated that claimant had chronic moderate to severe pain.

In August, 1979, claimant entered a vocational rehabilitation program. Because she was physically unable to return to her usual occupation as a cook, she received training as an electronic component assembler. Her treating orthopedist, Dr. Neufeld, reported that, although she was experiencing pain, she was progressing in the program and wished to continue it. During the training, claimant was allowed to sit or stand as necessary to alleviate the pain; however, she was still unable to attend classes on a full-time schedule because of her physical condition.

Myelography was performed in January, 1980, which revealed small defects at the cervical and lumbar levels, but surgery was not recommended. In February, 1980, claimant's treating chiropractor reported that the sitting required in her training classes "is a continuous aggravation which I believe is very damaging to her recovery rate."

In July, 1980, claimant was again seen by Dr. Pasquesi. He reported:

"Healed fracture of the sacrum with marked preexisting degenerative disease in the lumbar spine area with some radiculitis extending down the left leg without motor or sensory objective changes. Pre-existing degenerative changes in the cervical spine area with radiculitis down the left arm. The patient also has apparent peritendinitis in the region of the left shoulder with restricted motion and continued discomfort."

He stated that claimant should be able to function in some type of employment not requiring that she sit continually for an eight-hour period and that she has limited motion in her left arm and probably could not effectively use the arm above waist level. In July, 1980, her treating chiropractor described claimant's lumbar pain as "excruciating, with [her] neck difficulties almost as bad."

In August, 1980, the Vocational Rehabilitation Division closed her file because of "handicap too severe or unfavorable...