Askew v. Edward Hines Lumber Co. ( 1977 )

JOHNSON, J.

This is a workers’ compensation appeal concerning the extent of claimant’s permanent disability. By determination orders claimant received an award of 288 degrees, 90 percent of the maximum allowable for unscheduled permanent partial disability, which was affirmed by the referee. The Workers’ Compensation Board reversed the referee and concluded that claimant had established permanent and total disability. The Circuit Court affirmed.

Claimant, now 43 years of age, sustained a compensable injury to his lower back on November 5, 1968, when he fell from the boom of a log loading machine. He continued to work until November 15, 1968, but has not worked since. Following his injury, claimant received continuous medical treatment, including two surgical procedures: a laminectomy and spinal fusion in 1969, and a second fusion performed in 1973. Following the second surgery, which was not entirely successful, the treating physician concluded:

"As far as manual work is concerned, he is totally and permanently disabled. There are some things he could do on a wage earning basis, such as be a custodian, if it involved not too much bending or lifting; a watchman or what he would like to do, if such a job were available, work for the Wild Life and Game division of the State of Oregon.”

Claimant testified that he experiences pain in his shoulders, back and lower legs. He also testified that he has severe restrictions in standing, sitting, bending, lifting, gripping and holding. He stated that he cannot work, and that there is no work to his knowledge that he could do.

While it is apparent that claimant suffered severe injuries which cause him pain, the record does not indicate that he is permanently and totally disabled.

Claimant’s own testimony shows that he hunts and fishes frequently. He testified that he could walk a mile to fish before his back would begin to hurt him, and that he had driven himself from his home near John Day to Detroit Lake to fish with only occasional stops to stretch his legs. Claimant also testified that he drives himself 60 miles round-trip to hunt, and that he can walk a mile while hunting before his back and legs begin to cause him pain. In addition claimant apparently works on his own automobile, walks as much as a mile a day, and has no difficulty sleeping through the night.

The record also reveals a lack of motivation to work. Although claimant completed only the ninth grade and had found that some jobs were not available to him because he did not have a high school diploma, he never attempted to get his G.E.D. He testified that he was interested in working as a nightwatchman, custodian, or a warden for the game commission, but he never made formal application for work anywhere. He stated that he hadn’t investigated employment outside of Grant County, nor had he sought rehabilitation training himself after completing a program at the Vocational Rehabilitation Center in 1970 following his first surgery.

In Wilson v. Weyerhaeuser Co., 30 Or App 403, 567 P2d 567 (1977), we reexamined the concept of motivation as an element of permanent and total disability under the odd-lot doctrine and concluded:

"* * * [T]he existence or absence of motivation is not essential to the establishment or disproof of a claim of permanent total disability. Rather, when odd-lot status is in issue and such evidence is offered, it is to be weighed by the fact finder, free from talismanic significance and procedural consequences, along with all other evidence from either party which reflects on the existence, nature and scope of disability.” 30 Or App at 412.

The medical evidence viewed most favorably to claimant is equivocal. The principal evidence concerning his physical condition and motivation was claimant’s own testimony. That testimony was to a substantial degree contradictory of claimant’s assertions of total disability. The referee who saw and heard the witness was in a superior position to make an evaluation in this case. We adopt the decision of the referee.

Reversed and remanded.