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Rios v. Bros.

March 12, 1973

RIOS, APPELLANT,
v.
HELMS BROS., RESPONDENT



Appeal from Circuit Court, Marion County. Jena V. Schlegel, Judge.

Glenn D. Ramirez, Klamath Falls, argued the cause for appellant. With him on the briefs were Ramirez & Hoots, Klamath Falls.

Charles Paulson, Portland, and Edwin A. York, Portland, filed the brief for respondent.

Schwab, Chief Judge, and Langtry and Foley, Judges.

Schwab

This is a workmen's compensation case in which the claimant is seeking to increase to permanent total disability an award of 160 degrees for permanent partial disability made by the hearing officer and affirmed by the Workmen's Compensation Board and the circuit court. The claimant's assignment of error reads:

"The trial court erred in finding and concluding: That Claimant has permanent partial disability not exceeding 160 degrees and that in assessing the amount of permanent partial disability the court concurs with the Workmen's Compensation Board and that there is no evidence to substantiate Claimant's allegation that he is the subject of minority discrimination and therefore based upon said findings, the order of the Workmen's Compensation Board dated December 31, 1971, is affirmed."

He points to no evidence and cites no authority to support his claim of minority discrimination. As near as we can interpret his brief, his arguments are that (1) he is a farm worker of Mexican descent, (2) most farm workers are of Mexican descent, Negroes or Indians, and (3) ORS 656.210 (3)*fn1 is unconstitutional because it is the product of invidious legislative intent to give less compensation to individuals who are members of those ethnic groups. Even if there was some merit to this contention we could not properly consider it here. ORS 656.210 deals with temporary total disability only. The only issue which the claimant

has raised on appeal addresses itself to his degree of permanent disability.

The claimant, now about 40 years of age, was working as a field laborer at the time of an injury to his back. The injury necessitated several operations. According to his doctor his condition is now stationary, and his residual disability is such as to preclude him from doing heavy lifting or constant bending in the future. There is nothing in the record to show that he is unqualified to do lighter work not requiring heavy lifting or constant bending. Nor does the record support a finding that such work is either not available or that he, if not presently qualified for such work, is not retrainable so as to qualify. To the contrary, the record shows that for four weeks prior to the hearing he was working as a "row boss" on a farm without any great difficulty.

Affirmed.

Disposit ...


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