Deaton v. State Accident Insurance Fund , 33 Or. App. 261 ( 1978 )

576 P.2d 35 (1978) 33 Or.App. 261

In the matter of the Compensation of Henry C. DEATON, Claimant, Appellant,
v.
STATE Accident Insurance Fund, Respondent.

Court of Appeals of Oregon.

Argued and Submitted January 24, 1978. Decided March 20, 1978.

Keith E. Tichenor, Portland, argued the cause for appellant. With him on the brief was Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland.

Earl M. Preston, Associate Counsel, Portland, argued the cause for respondent. With him on the brief were K.R. Maloney, Chief Counsel, and James A. Blevins, Chief Trial Counsel, Salem.

Before SCHWAB, C.J., and TANZER and BUTTLER, JJ.

TANZER, Judge.

In this workers' compensation case, claimant suffered an industrial back injury in 1971 for which he claimed permanent total disability and was awarded 75 percent of total disability. Deaton v. SAIF, 13 Or. App. 298, 509 P.2d 1215 (1973). In 1974, a claim for aggravation was dismissed. This is a second claim for aggravation. The hearings officer, Workers' Compensation Board and circuit court found that there was no significant change in his condition and the claim was denied. Claimant appeals, contending that his disability is total.

There would be no public good served in setting out the facts. The testimonial evidence is inconclusive and the medical evidence does not indicate a change in condition. At the heart of claimant's position is his belief that his initial determination was erroneous and that he should have been found permanently totally disabled. However that may be, the initial determination cannot be relitigated in an aggravation claim. Waldroup v. J.C. Penney Co., 30 Or. App. 443, 448, 567 P.2d 576 (1977).

Affirmed.