Garbutt v. SAIF Corp. , 297 Or. 148 ( 1984 )

JONES, J.

The claimant petitioned for judicial review of the Workers’ Compensation Board’s order awarding him 30 percent permanent partial unscheduled disability for injury to his left shoulder. The Board’s order reduced the referee’s award of permanent total disability. The Court of Appeals affirmed without opinion.

After reviewing the very complicated medical history of the claimant, the Board stated in its order: “The medical evidence does not support any conclusion other than that claimant has suffered a very minor impairment to his left shoulder” and that “[w]e do not believe that it is an uncomplicated matter such that lay testimony alone would be sufficient to resolve the issue.” The claimant and his wife had testified that he was no longer able to do very much with his shoulder and that the injury, coupled with other non-job related injuries, left him unable to work at any suitable employment.¹

SAIF contends in its brief:

“* * * Petitioner asserts that since * * * medical opinions were issued, and since the last arrangement of compensation * * *, his left shoulder has worsened. There is no medical evidence to support his testimony. He says he needs none. The law says he does. In Oakley v. SAIF, 63 Or App 433, 664 P2d 431 (1983), the Court held ‘An aggravation claim based solely on a claimant’s statement that his condition has deteriorated is statutorily insufficient.’ * * *”

The claimant responded that his claim was not an aggravation claim, but an “extent of unscheduled permanent disability” claim and that Oakley v. SAIF, 63 Or App 433, 664 P2d 431 (1983), upon which SAIF and apparently the Board relied, is irrelevant.

Oakley involved a claim for aggravation under ORS 656.273, which provides:

“(1) After the last award or arrangement of compensation, an injured worker is entitled to additional compensation, including medical services, for worsened conditions resulting from the original injury.”

Although the statute mentions that a claim may be commenced by filing a physician’s report:

“(3) A physician’s report indicating a need for * * * additional compensation is a claim for aggravation.”

It further provides that a physician’s report is not a jurisdictional requirement for an aggravation claim:

“(7) * * * Adequacy of the physician’s report is not jurisdictional. If the evidence as a whole shows a worsening of the claimant’s condition the claim shall be allowed.”

The Court of Appeals in Oakley was incorrect when it stated: “An aggravation claim based solely on a claimant’s statement that his condition has deteriorated is statutorily insufficient.”² 63 Or App at 436. The statute as amended in 1973 does not require a physician’s report to support such a claim. The cases cited in Oakley, Larson v. Compensation Dept., 251 Or 478, 445 P2d 486 (1968), and Collins v. States Veneer, Inc., 14 Or App 114, 119, 512 P2d 1006 (1973), were based on ORS 656.271 which required such medical evidence. However, ORS 656.273 was enacted in 1973 in lieu of ORS 656.271.³

We allowed review in this case to make clear that a physician’s report is not indispensable in a workers’ compensation claim. In the case of an “extent of disability” claim, such as this claim, as in the case of an aggravation claim, no physician’s report is required to be statutorily sufficient. The worker’s or other lay testimony may or may not carry the worker’s burden of proving the extent of disability, but the law does not mandate a medical report. The same is true for an aggravation claim.

In reviewing the Board’s order in this case, we cannot determine if the Board, as did SAIF, believed medical testimony was statutorily required or simply that the Board was unconvinced by the lay testimony and without medical evidence could not resolve the issue. If based on the latter, the Board’s decision is legally correct; if based on the former, the Board should reevaluate its decision in light of all the credible lay and expert or professional medical evidence.

The Court of Appeals is reversed and this matter is remanded to the Workers’ Compensation Board for further proceedings consistent with this opinion.

1 ORS 656.206(l)(a):

“ ‘Permanent total disability’ means the loss, including preexisting disability, of use or function of any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation. As used in this section, a suitable occupation is one which the worker has the ability and the training or experience to perform, or an occupation which the worker is able to perform after rehabilitation.”

2 The Court of Appeals in Oakley v. SAIF, 63 Or App 433, 436, 664 P2d 431 (1983), also stated that “[aggravation of a chronic lumbosacral strain presents a complicated question requiring expert medical advice.” We assume that the court, in its role as trier of fact, made that statement with respect to the Oakley case itself, for if the statement was meant to be a rule of law, it was erroneous. Aggravation claims for chronic lumbosacral strains do not, as a matter of law, require medical testimony.

3 ORS 656.271 (1971) required that “[t]he claim for aggravation must be supported by a written opinion from a physician that there are reasonable grounds for the claim.” Or Laws 1973, ch 420, §§ 4 and 5.