Appeal from Circuit Court, Wasco County. John A. Jelderks, Judge.
James B. Griswold, Portland, argued the cause for appellant. On the briefs were James M. Pippin and Green, Richardson, Griswold & Murphy, Portland.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Thornton, Judge. Schwab, Chief Judge, and Foley, Judge.
This is an appeal from a judgment of the circuit court affirming the findings and award of the Workmen's Compensation Board and hearing officer. The award gave claimant 30 degrees or 20 per cent partial loss of the right leg.
On appeal claimant asserts that the circuit court erred in affirming that portion of the Board's order denying claimant an award for a claimed injury to his back and for asserted loss of earning capacity. He contends that he has sustained an impairment of his earning capacity of 28.5 per cent, and that he is entitled to a minimum award for unscheduled disability of 28.5 per cent of 320 degrees, or an additional 91 degrees.
The claimant was injured on June 4, 1968, while employed as a furniture mover and truck driver by Ralph's Transfer & Storage in The Dalles. He had worked for the same employer continuously since 1957. He originally suffered an on the job injury to his back in 1962. Claimant underwent surgery for the removal of a herniated disc, with the surgeon performing a laminectomy. He made a satisfactory recovery
and was able to return to his former employment, performing his duties "reasonably well." He was relatively symptom-free except for his left leg and foot. His claim was closed in December 1962, and he received an award of permanent partial disability equivalent to 35 per cent lost function of an arm for an unscheduled disability.
On the day of the 1968 accident claimant was unloading a refrigerator from a truck. While walking backward he stepped off the walk board and fell, the refrigerator falling on top of him. Claimant testified that he immediately felt a sharp pain which appeared to originate in the right buttock and extended downward to the top of his right foot. He went home and rested the remainder of the day. The next day he consulted an osteopathic physician who advised him to remain in bed and rest for an additional two days. Thereafter he consulted a local physician, Dr. John Campbell, who placed him in the hospital. His right leg was placed in traction for four days, and both lower extremities for three additional days.
On June 21, the claimant was referred to Dr. Paul Campbell, an orthopedic specialist in Portland. Dr. Paul Campbell concluded that claimant had sustained "an acute compression of the right fifth lumbar nerve root" and advised him to remain off work two to three months, and continue on a program of progressive rehabilitation. Claimant sought and found employment with The Port of The Dalles and commenced working there September 1, 1968, at a starting salary of $500 per month. His duties on this job did not require him to lift heavy objects. However, he testified that periodically he experienced severe pain
in his lower back and right leg while working at his new job; that at times he had to lie down flat on his back to get relief. This was verified by the ...