Gutierrez v. Redman Industries , 16 Or. App. 421 ( 1974 )

SCHWAB, C.J.

This workmen’s compensation appeal involves the extent of claimant’s permanent disability resulting from a compensable injury received July 31, 1971. On March 21, 1972, the Closing and Evaluation Division of the Workmen’s Compensation Board entered a determination order awarding claimant 32 degrees of permanent partial disability for unscheduled low back difficulties. Thereafter claimant filed a request for a hearing.

The hearing officer found claimant was permanently and totally disabled. On review the Workmen’s Compensation Board set aside the hearing officer’s order and granted claimant 160 degrees of a maximum 320 degrees for unscheduled disability. The Board’s order was affirmed by the circuit court. As did the circuit court, we agree with the Workmen’s Compensation Board’s determination that claimant has not demonstrated by a preponderance of the evidence that he is presently totally disabled and also agree that an award of 160 degrees for permanent partial disability is proper. The Board’s order, with which we concur, reads in pertinent part:

“This 37 year old workman suffered a compensable back injury on. July 31, 1971, while employed by a mobile home construction plant. His claim was closed'March 31, 1972 with an award of 32°. unscheduled disability for low back injuries; Upon hearing, a Hearing Officer found him to be permanently and totally disabled.

“Dr. Chester, the initial treating physician, felt claimant had a moderate to moderately severe impairment and he referred claimant to the Physical Rehabilitation Center facility of the Workmen’s Compensation Board. At the Center, Dr. Van Osdel diagnosed a chronic strain and aggravation of preexisting disc disease. The Back Evaluation Clinic considered the loss of function of the back to be mild and felt claimant could return to work. After Ms injury, claimant did in fact return to a similar job for five weeks working intermittently and finally leaving when the employer’s business failed.

“In spite of the claimant’s limited education and the language barrier, the Board believes he is not so deficient in these areas that with adequate rehabilitation he cannot be refitted to function in some type of employment. The order of the Hearing Officer failed to take into account the rehabilitative services available to this claimant. With proper rehabilitation claimant’s permanent loss of earning capacity should not exceed 160° of a maximum of 320°.

“The Board is anxious to assist this not-yet 40 year old workman in recovering his motivation to seek gainful employment and to again become a useful member of the labor market. The Board is desirous that all avenues of rehabilitation be opened to this claimant.

“The Disability Prevention Division, Portland, is directed to contact this workman and arrange for counseling, possible enrollment in job training and provide other assistance as necessary.” (Emphasis supplied.)

We recognize, as did the Board, that claimant is suffering from an aggravation of a preexisting condition which may worsen rather than improve or' stabilize. If claimant’s condition does deteriorate in the future, under the provisions of OES 656.271 and 656.278, reevaluation of Ms disability is not foreclosed.

Affirmed.