Appeal from Circuit Court, Multnomah County. Alan F. Davis, Judge.
Charles R. Holloway, III, Portland, argued the cause for appellant. With him on the briefs were Tooze, Kerr & Peterson, Portland.
Al J. Laue, Assistant Attorney General, Salem, argued the cause and filed a brief amicus curiae. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Noreen K. Saltveit, Portland, argued the cause and filed the brief for respondent.
Raymond J. Conboy, Portland, argued the cause and filed a brief amicus curiae. With him on the brief were Pozzi, Wilson & Atchison, Portland.
Schwab, Chief Judge, and Langtry and Fort, Judges.
The sole issue in this workmen's compensation appeal is the amount to be awarded to the claimant for a permanent partial unscheduled disability suffered by him due to a laminectomy and subsequent fusion of his low back. The Closing and Evaluation Division of the Workmen's Compensation Board, the hearing officer and the Workmen's Compensation Board all concurred in an award of 96 degrees. The trial judge increased the award to 192 degrees.
In Surratt v. Gunderson Bros., 259 Or 65, 485 P2d 410 (1971), the Supreme Court discussed at length the basis of workmen's compensation awards. It concluded that the sole criterion for determining a scheduled disability is loss of physical function, and that the sole criterion for determining an unscheduled disability is loss of future earning capacity. In Surratt the court clearly pointed out that the determination of earning capacity must be made solely by attempting to ascertain what the future holds for the individual claimant, stating:
"It can be argued that when a man of low intelligence quotient suffers a disabling injury to his back he should get no more than an intelligent man who suffers the same degree of injury, because
the accident did not impair his mental ability which was the same after the accident as before. In fact, however, the intelligent man will suffer a very slight loss of earning capacity because he can be trained for a wide range of employment that does not involve heavy manual labor, whereas the less intelligent one will be reduced to applying for employment as a night watchman or for some other type of employment for which there is little need. To say that their loss of earning capacity attributable to the accident is the same would be completely incongruous. It would be contrary to Larson's admonition*fn1 that compensable disability is inability to perform or to obtain work suitable to the claimant's qualifications or training. Although it is certainly within the legislature's prerogative to provide that awards for permanent partial disability shall be on the basis of loss of physical function, we believe its intention to do so should be plain. We know of no statutory provision which so indicates except that which authorizes awards for permanent partial scheduled disabilities." 259 Or at 74-5.
Surratt, at age 36, underwent a low back fusion necessitated by a back injury. "The operation was only partially successful, leaving him with a pseudarthrosis, a false joint produced by an imperfect fusion of the vertebrae * * *." 259 Or at 67. Surratt remained unemployed for the period of 2 1/2 years which intervened between his surgery and his hearing. The court noted about Surratt:
"* * * The medical testimony is unanimous to the effect that he can no longer do strenuous manual labor. This is the only kind of employment he has ever had. At the time of his injury, he was 36 ...