Opinion
WCB 83-06180; A33686
Argued and submitted January 22, 1986.
Reversed and remanded with instructions June 4, 1986.
Judicial Review from Workers' Compensation Board.
Vernon Cook, Gresham, argued the cause and filed the brief for petitioner.
Douglas F. Zier, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Reversed and remanded with instructions to remand to the referee.
While her case was pending before the Workers' Compensation Board, claimant petitioned the Board to remand it to the referee for consideration of evidence discovered after the hearing that indicated conclusively, and for the first time, that the cause of her pain and disability was a herniated disc. ORS 656.295(6). The Board denied the petition; it did review the new evidence and concluded that it was relevant to an aggravation claim, which was not an issue then before it. SAIF concedes that remand was probably appropriate, Bailey v. SAIF, 296 Or. 41, 622 P.2d 333 (1983), but suggests that we may review the evidence in the first instance, because the record here has been supplemented. We believe that the claims process would be served better by remand to the referee for consideration of the new evidence and for clarification of the issues to be resolved.
Reversed and remanded with instructions to remand to the referee.
Claimant seeks an award of penalties and attorney fees. On SAIF's motion, those issues were stricken, because there is no basis for them. In view of our disposition, we do not address claimant's remaining assignments.