Woodman, Matter of

• Decision Date: 24 July 1980
• Docket Number: GEORGIA-PACIFIC
• Parties: In the Matter of the Compensation of Donald E. WOODMAN. Donald E. WOODMAN, Petitioner, v.CORPORATION, Respondent. WCB 78-5283; CA 14188 and SC 26641.
• Court: Oregon Supreme Court

Page 1162

614 P.2d 1162

289 Or. 551

In the Matter of the Compensation of Donald E. WOODMAN.

Donald E. WOODMAN, Petitioner, v. GEORGIA-PACIFIC CORPORATION, Respondent.

WCB 78-5283; CA 14188 and SC 26641.

Supreme Court of Oregon.

Argued and Submitted May 5, 1980.

Decided July 24, 1980.

Michael Strooband, of Bischoff, Murray & Strooband, P.C., Eugene, argued the cause for petitioner. With him on the brief were Doblie, Bischoff & Murray, P.C., Eugene.

Jack L. Mattison, of Jaqua & Wheatley, P.C., Eugene, argued the cause and filed a brief for respondent.

Raymond J. Conboy, Portland, filed a brief for the Oregon Trial Lawyers Association as amicus curiae.

Paul R. Bocci, Jr., Portland, filed a brief for Oregon Association of Defense Counsel as amicus curiae. With him on the brief were Schwabe, Williamson, Wyatt, Moore & Roberts, and Robert E. Joseph, Jr., Portland.

Before DENECKE, C. J., and TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ.

LINDE, Justice.

As a result of an industrial accident in 1974, claimant's left arm was amputated a few inches below the shoulder, and he was fitted with a prosthesis. After further surgical procedures and replacement of the prosthesis due to pain, he returned to work for the employer in 1976 but continued to experience phantom pain and other difficulties. In 1978, the Workers' Compensation Department issued a Determination Order awarding claimant the scheduled 192 degrees of permanent partial disability for 100 percent loss of the arm as prescribed by ORS 656.214(2)(a). ¹ Claimant sought an additional award for unscheduled disability of his left shoulder and back. After a hearing, the referee affirmed the determination order. The Workers' Compensation Board The exact question has not previously been decided by this court, but it is not a new issue. See, e. g., Shemel, Workmen's Compensation Awards for Injuries to Specific Members of the Body, 30 Cornell L.Q. 218 (1944). The problem is inherent in the structure of the workers' compensation law. Oregon's law, like that of other states, compensates permanent partial disability on two distinct principles. When the injury affects a part of the body specified in the statute an arm, leg, hand, foot, finger, toe, or joints thereof, an eye or an ear compensation is awarded for the permanent loss of use or function of the injured member or organ, in an amount fixed by law irrespective of the actual effect on the earning capacity of the particular worker. ORS 656.214(2). In other words, the measure of compensation is the physiological rather than the economic effect of the injury. When permanent disability results from an injury to any other, "unscheduled," part of the body, compensation is measured by the loss of earning capacity, that is, by the loss of economic function. ORS 656.214(5), supra note 2; Surratt v. Gunderson Bros., 259 Or. 65, 78, 485 P.2d 410 (1971); Ryf v. Hoffman Construction Co., 254 Or. 624, 459 P.2d 991 (1969); Kajundzich v. State Ind. Acc. Comm., 164 Or. 510, 512, 102 P.2d 924 (1940). Both measures are designed to compensate for the economic loss of earning capacity, not for the physical loss as such. The use of prescribed degrees of compensation for the scheduled physiological losses, somewhat like liquidated damages, serves to simplify and expedite settlement of such claims by excluding disputed predictions of the claimant's future earning capacity; but this gain carries the cost that the schedule may sometimes overstate and sometimes understate the actual loss of earning capacity of the injured individual. Predictably, the statutory design comes under strain whenever a scheduled loss has functional consequences that reduce the claimant's earning capacity in substantially greater degree than is provided in the schedule.

                modified the order to award claimant an additional 48 degrees of unscheduled disability for 15 percent disability of his upper back.  2  This award was reversed by the Court of Appeals.  42 Or.App. 899, 601 P.2d 909 (1979).  We allowed review in order to determine under what circumstances permanent partial disability resulting from an injury which causes a loss scheduled in ORS 656.214(2) may also be compensable as an unscheduled disability under ORS 656.214(5)
                

On the side of the employer in this case, ³ it is argued that the legislature has fixed and from time to time has adjusted the compensation for permanent partial disability from scheduled losses to reflect what in its judgment are the effects on earning capacity to be expected from such losses in most ordinary occupations, and that it meant this to be the exclusive compensation under the statute. This is also said to extend to those secondary bodily or psychic consequences of a scheduled loss that are so predictable that they must have been contemplated by the legislative scheme. On the side of the claimant it is argued that once the disabling injury extends beyond a scheduled part of the body, it has "spread" to the unscheduled category and is compensable under ORS 656.214(5) regardless whether the "spreading" was an expected or unexpected consequence of the original injury. Only the "inevitable" consequences of a scheduled loss are conceded to be covered The Court of Appeals reasonably considered itself bound by language in this court's opinion in Kajundzich v. State Ind. Acc. Comm., supra, which quoted an early New York case for the proposition that the scheduled award covers any "usual and expected effect" of the injury to the scheduled part of the body, but that it does not preclude a nonscheduled award for an "actual, although unusual and unexpected, condition" resulting from that injury. 164 Or. at 514, 102 P.2d at 926, quoting Dowling v. Gates, 253 N.Y. 108, 110-111, 170 N.E. 511 (1930). Kajundzich itself was a different case. There the issue was whether a scheduled award for injury to a foot precluded an award for a greater degree of disability for injury to the leg, another scheduled member, and the court sustained the larger award on its own review of the facts. Applying the same principles to the evidence in a companion case, the court reversed a scheduled award for partial disability of a hand when the injury was to claimant's thumb and there were no separate physiological consequences to the hand but only the loss of function to be expected from the loss of a thumb. Graham v. State Ind. Acc. Comm., 164 Or. 626, 102 P.2d 927 (1940). Neither case involved an unscheduled loss to be measured by reduced earning capacity. Also distinguishable are cases in which a conceded injury to an unscheduled part of the body is accompanied by loss of function of a scheduled part, as in Surratt v. Gunderson Bros., supra, 259 Or. at 78, 485 P.2d 410, Foster v. S.A.I.F., 259 Or. 86, 485 P.2d 407 (1971); Walker v. Compensation Dept., 248 Or. 195, 432 P.2d 1018 (1967), for in such cases there is no reason to assume that the legislature meant the existence of a scheduled loss to limit the award for lost earning capacity payable for the unscheduled loss. Still another variation is an injury to a scheduled part of the body that produces a loss of function different from that covered in the schedule, for instance an eye injury causing disability other than loss of vision. ORS 656.214(2)(i); Russell v. SAIF, 281 Or. 353, 574 P.2d 653 (1978) (allowing unscheduled disability rating).

by the scheduled measure of compensation.

The case now before us presents the question of an injury to a scheduled part of the body affecting an unscheduled area with additional disabling effect. As stated above, the employer contends that the scheduled award is exclusive if the additional effect is "usual" or "expected"; the claimant contends that only "inevitable" effects are excluded. It should be made clear at the outset to what this contest of adjectives is addressed. It is not the probability or certainty of lost earning capacity. Nor is it the probability or certainty that a given operational function of the uninjured parts of the body will by lost because it depends on the missing or disabled member. Both of these consequences clearly are encompassed within the scheduled award. Rather, the dispute concerns the physiological (possibly also the psychic) consequences of an injury to a scheduled part of the body for other, unscheduled areas. It is a question of medical cause and effect.

If these consequences extend beyond the anatomical limits of the scheduled part itself, they may be said to "spread," as claimant states. One possible reading of the law might be that whenever an injury does extend or spread beyond the limits of a scheduled to an unscheduled area, and the effect on the unscheduled area would itself be recognized as disabling, then the disability would fall within ORS 656.214(5) regardless of its medical probability or improbability. That reading would have the virtue of simplicity. However, petitioner's claim does not go so far. He concedes that to move beyond the scheduled award to unscheduled loss of earning capacity in every such case would go beyond the legislative design when the effect on the unscheduled area is an "inevitable" consequence of the injury to the scheduled member or organ. The disagreement is between that statement of the test and the employer's contention that the legislature meant to incorporate all "usual and expected" effects beyond the scheduled area in the statutory award for the scheduled loss. It becomes a disagreement over the required degree of probability.

There are limits to how much the law can express by adjectives and adverbs. Even the word "inevitable" in this context expresses not a logical necessity but an empirical judgment about the human organism that rests on the current state of clinical knowledge and statistical experience. We shall not attempt a false precision by stating the required relationship to be shown by expert testimony as a numerical percentage of probability discounted by another...