The circumstances suggest to us, however, that the Court of Appeals may have affirmed the Board as the result of an erroneous interpretation of the law. In Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978) the Court of Appeals explained that it believed that little was to be gained by extended opinions in workers' compensation cases where the record presented only questions of fact. In Hoag v. Duraflake, 37 Or. App. 103, 585 P.2d 1149 (1978) the Court of Appeals reaffirmed that it would not publish extended opinions in such cases.
Gettman v. SAIF, 289 Or. 609, 612-13, 616 P.2d 473 (1980). For example, where the Court of Appeals affirms with a citation to Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978), or Hoag v. Duraflake, 37 Or. App. 103, 585 P.2d 1149 (1978), it is a strong indication that the case was affirmed by exercise of the Court of Appeals fact finding function. The determination that the Court of Appeals affirmed on an issue of law is simplified where the Court of Appeals cites a statute or a prior case decided on an issue of law.
We are unable with any confidence to do so. The Court of Appeals' per curiam opinion in Myers does not cite Christensen; rather, Bowman v. Oregon Transfer Co., 33 Or. App. 241, 576 P.2d 27 (1978), is cited as the authority on which the case was decided by the Court of Appeals. This leads us to believe that the Court of Appeals' decision was the result of its function as factfinder. See, Gettman v. SAIF and Rogers v. SAIF, both supra n 4. On the other hand, claimant, in his brief, has sought to distinguish Myers despite the fact that the Court of Appeals did not rely upon that case.
The Court of Appeals has published an explanation of the reasons by which it decides cases either with or without opinion. Consistent with that policy, it deems it to be both necessary and desirable to decide cases involving only factual issues without opinion, Bowman v.Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978). The Court of Appeals has also explained why, as in this case, it issues opinions with a bare citation:
We do not detail the facts. See Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978). The disease was not caused by the injury. The evidence indicates that the effect of the disease in the original injury was to increase the extent of disability caused by the original injury. The back strain, which would otherwise have been a minor injury, caused a compression fracture of the disease-weakened vertebra at L3.
Those two issues are purely factual, and we agree with the Board's findings. See Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978). Both claimant and insurer seek review of the award of penalties and attorney fees made pursuant to ORS 656.262(10).
Employer is not entitled to an offset in this claim. On the merits, and without indulging in a lengthy recitation of the medical evidence, see Bowman v. Oregon Transfer Co., 33 Or. App. 241, 576 P.2d 27 (1978), we find that after the first award claimant had recovered significantly from the effects of his earlier injuries. We conclude that the Board's award of 25 percent (80 degrees) permanent partial disability appropriately compensates him for the new or additional disability that resulted from the latest injury and that was not compensated for by the first award.
See ORS 656.208. Exercising our de novo review function, see Hoag v. Duraflake, 37 Or. App. 103, 585 P.2d 1149, rev den 284 Or. 521 (1978); Bowman v. Oregon Transfer Co., 33 Or. App. 241, 576 P.2d 27 (1978), we find that claimant has proved by a preponderance of the evidence that he is totally and permanently disabled. Two physicians and one vocational rehabilitation consultant came to this conclusion.
On the merits, no useful purpose will be served by reciting the medical evidence. See Bowman v. Oregon Transfer Co., 33 Or. App. 241, 576 P.2d 27 (1978). On de novo review, we agree with the Board that claimant's condition worsened since the last arrangement of compensation and that his 1980 aggravation claim should have been accepted.
No useful purpose will be served by a lengthy recitation of the medical evidence. See Bowman v. Oregon Transfer Company, 33 Or. App. 241, 576 P.2d 27 (1978). Claimant asserts that penalties are justified because of the insurer's (1) failure to reopen the claim and pay time loss benefits; (2) delay in denying the fibrositis and psychiatric condition; and (3) closure of the claim.