Opinion
WCB 84-10933; CA A37861; SC S33779
On petition for review filed March 12, review allowed and case remanded to Court of Appeals in light of opinions and decisions of the Supreme Court in Barrett v. D H Drywall, 300 Or. 325, 709 P.2d 1083 (1985), 300 Or. 553, 715 P.2d 90 (1986) June 2, 1987
In Banc
James L. Edmunson, Karen M. Werner, and Malagon Moore, Eugene, for petitioner on review.
PER CURIAM
The petition for review is allowed. The case is remanded to the Court of Appeals in light of the opinions and decisions of the Supreme Court in Barrett v. D H Drywall, 300 Or. 325, 709 P.2d 1083 (1985), 300 Or. 553, 715 P.2d 90 (1986).
The issue in this workers' compensation case involves the effect of symptoms from a pre-existing condition on a claim for loss of earning capacity following a compensable injury. Claimant contends that the referee failed to apply the law properly. The Workers' Compensation Board (Board) affirmed and adopted the opinion of the referee without elaboration. After our decision in Barrett v. D H Drywall, 300 Or. 325, 709 P.2d 1083 (1985), 300 Or. 553, 715 P.2d 90 (1986), the Court of Appeals affirmed this case without opinion. It is to be noted that our opinion in Barrett reversed the most recent opinion of the Court of Appeals in Barrett on the issue in this case.
Because we do not review the evidence to arrive at independent findings of fact in workers' compensation cases, Sahnow v. Fireman's Fund Ins. Co., 260 Or. 564, 491 P.2d 997 (1971), we would not allow review in this case if we could determine that the Court of Appeals had exercised its fact-finding function by evaluating the evidence under the correct rule of law. Gettman v. SAIF, 289 Or. 609, 612-13, 616 P.2d 473 (1980). However, the circumstances of this case suggest that the Court of Appeals may have affirmed the Board under an erroneous interpretation of the law.
The petition for review is allowed. The case is remanded to the Court of Appeals in light of the opinions and decisions of the Supreme Court in Barrett v. D H Drywall, supra.