Lizotte v. Eastern Oregon Hospital

PER CURIAM

The issue in this workers’ compensation case involves the effect of symptoms from a pre-existing condition on a claim for loss of earning capacity following a compensable injury. Claimant contends that the referee failed to apply the law properly. The Workers’ Compensation Board (Board) affirmed and adopted the opinion of the referee without elaboration. After our decision in Barrett v. D & H Drywall, 300 Or 325, 709 P2d 1083 (1985), 300 Or 553, 715 P2d 90 (1986), the Court of Appeals affirmed this case without opinion. It is to be noted that our opinion in Barrett reversed the most recent opinion of the Court of Appeals in Barrett on the issue in this case.

Because we do not review the evidence to arrive at independent findings of fact in workers’ compensation cases, Sahnow v. Fireman’s Fund Ins. Co., 260 Or 564, 491 P2d 997 (1971), we would not allow review in this case if we could determine that the Court of Appeals had exercised its fact-finding function by evaluating the evidence under the correct rule of law. Gettman v. SAIF, 289 Or 609, 612-13, 616 P2d 473 (1980). However, the circumstances of this case suggest that the Court of Appeals may have affirmed the Board under an erroneous interpretation of the law.

The petition for review is allowed. The case is remanded to the Court of Appeals in light of the opinions and decisions of the Supreme Court in Barrett v. D & H Drywall, supra.