Opinion
84-10933; CA A37861
Submitted on remand from the Oregon Supreme Court July 1, 1987.
Affirmed September 2, 1987.
Judicial review from Workers' Compensation Board.
James L. Edmunson, Karen M. Werner, Eugene, and Malagon Moore, Eugene, for petitioner.
Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Darrell E. Bewley, Assistant Attorney General, Salem, for respondents.
Before Richardson, Presiding Judge, and Warren and Deits, Judges.
PER CURIAM
Affirmed.
Claimant petitioned for review of a Worker's Compensation Board award of 35 percent permanent partial disability due to a compensable injury. We affirmed without opinion. 83 Or. App. 524, 732 P.2d 91 (1987). The Supreme Court remanded, 303 Or. 456, 737 P.2d 616 (1987), because it could not determine whether we had evaluated the evidence under the standard in Barrett v. D H Drywall, 300 Or. 325, 709 P.2d 1083 (1985), 300 Or. 553, 715 P.2d 90 (1986).
At the hearing before the referee, the parties had relied on our opinion in Barrett v. D H Drywall, 73 Or. App. 184, 698 P.2d 498 (1985), which was later reversed by the Supreme Court. However, we issued our decision in this case after the Supreme Court's decision in Barrett, and our consideration of the facts was done in the light of that opinion. On remand, we find no reason to disturb our earlier determination on de novo review that the referee correctly awarded claimant compensation for loss of earning capacity due to his compensable injury and not for his pre-existing degenerative condition. Barrett v. D H Drywall, supra, 300 Or at 555.
Affirmed.