Summary
In Davidson v. SAIF, 78 Or. App. 187, 714 P.2d 1117 (1986) (review pending), and McElmurry v. Roseburg School District, 77 Or. App. 673, 714 P.2d 264 (1986), the Court of Appeals for the first time held that the symptomatic worsening must result in greater disability by showing (a) a need for additional medical care, or (b) an inability to work as a result of the symptomatic worsening.
Summary of this case from Smith v. SaifOpinion
83-10512; CA A34909
Argued and submitted September 5, 1985.
Affirmed as modified February 26, 1986. Reconsideration allowed May 21, 1986. See 79 Or. App. 448, 719 P.2d 75 (1986).
Judicial Review from Workers' Compensation Board.
Robert Wollheim, Portland, argued the cause for petitioner. With him on the brief was Welch, Bruun and Green, Portland.
Darrell E. Bewley, Assistant Attorney General, Salem, argued the cause for respondents. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
PER CURIAM
Modified to award additional unscheduled permanent partial disability of 56 degrees for aggravation, for a total of 240 degrees; affirmed as modified.
In this workers' compensation case involving a claim for aggravation, the issue is the extent of permanent disability. Claimant had previously been awarded permanent partial disability of 184 degrees for 57.5 percent unscheduled disability. He requested a hearing on the determination order which awarded him additional temporary total disability and temporary partial disability but no additional permanent disability. The referee awarded permanent total disability based on the "odd lot" doctrine. The Board reversed, concluding that claimant was not entitled to an increase in permanent disability, because his condition had not worsened since the last determination of permanent disability. ORS 656.273(1). On de novo review, we find that there has been a worsening; before the most recent surgery, it was not clear that claimant's abdominal weakness could not be permanently corrected but would continually progress to the left of the most recent surgical repair. We determine claimant to have 240 degrees unscheduled permanent partial disability. Hoag v. Duraflake, 37 Or. App. 103, 105, 585 P.2d 1149, rev den 284 Or. 521 (1978).
Modified to award claimant an additional 56 degrees unscheduled permanent partial disability for aggravation, for a total of 240 degrees; affirmed as modified.