Appeal from Circuit Court, Curry County. John C. Warden, Judge. No. 6435.
Keith D. Skelton, Portland, argued the cause and filed the brief for appellants.
Maurice V. Engelgau, Coquille, argued the cause and filed the brief for respondent.
Foley, Judge. Thornton, Judge. Schwab, Chief Judge, dissenting.
This is an appeal from a judgment of the Curry County Circuit Court determining that claimant is
permanently and totally disabled from a workconnected injury under ORS 656.206(1)(a).
Claimant is a 49-year-old male with an eighth grade education. His work experience involved logging, operating heavy equipment, fishing and raising cattle. On June 7, 1967, while operating equipment for defendant employer, claimant fell some 12 feet from the top of a water tank, landed on his left leg and twisted his back. He became disabled and has not returned to work for U.S. Plywood. After two attempted back fusions, neither of which solidified, his condition was declared medically stationary in August 1970 and the case was thereafter closed. At that time he complained of low back pain and associated left leg numbness. Marked stiffness of the lumbar region was noted. Decreased sensation of the left calf and foot was noted, as was limitation of straight leg raising on the left. Side-to-side bending was limited to ten degrees. The hearing officer's findings included the following:
"Prior to this industrial injury of June 7, 1967, claimant's work experience included only those jobs involving hard strenuous labor. He was a logger and operated heavy equipment. His health was good and he was quite capable of strenuous physical activity. He was eighth grade educated. Since the injury claimant's ability to engage in hard physical activity has been seriously impaired. He is no longer able to log or to operate heavy equipment. Most activities cause physical problems. Bending is extremely difficult and claimant bends at his hips rather than his lumbar spine (Defendant's Exhibit A-21). He has trouble sitting. Riding or driving in an automobile any further than 50 miles cause[s] pain and discomfort to increase. Sitting causes numbness of the left leg. Lifting as much as 20 pounds is difficult for claimant. Clearly claimant suffers severe permanent disability.
"Claimant is capable of skippering his fishing boat.*fn1 He is able to go out in this two or three days per week during the salmon and crabbing season. He hires other persons to handle those jobs involving much physical activity. He has been able to stand at the wheel and keep an eye on the ship's instruments. He is able to mount three or four steps to the bridge and to do some minor servicing of the engine. He estimates his activities are only about 30% of those of a full-time fisherman. To all intents and purposes claimant has no saleable skill in this ability to skipper his boat. It is highly unlikely that he could obtain employment from other persons on a different boat. His physical problems prohibit daily fishing, a requirement in such seasonal work. Some days claimant is unable to get out of bed to take his boat out and it would be extremely difficult to work for someone else under these circumstances. Claimant's gross fishing income for 1970 was $9,402.15.*fn2 This is of very little importance. The important issue is how much physical labor claimant is able to expend to earn this sum.
"Claimant also owns a small herd of cattle. He is able to do some light work associated with his ownership of this herd. Again, the heavier work is done by others and claimant is unable ...