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Fisher v. Consolidated Freightways Inc.

March 12, 1973

FISHER, RESPONDENT,
v.
CONSOLIDATED FREIGHTWAYS, INC., APPELLANT



Appeal from Circuit Court, Multnomah County. Alfred T. Sulmonetti, Judge. No. 380 417.

J. Laurence Cable, Portland, argued the cause for appellant. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe and Michael D. Hoffman and Robert E. Joseph, Jr., Portland.

Donald R. Wilson, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson & Atchison and Elden M. Rosenthal, Portland.

Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.

Foley

On August 12, 1970 claimant suffered a strain in the dorsal area of his back while lifting. The claim was closed on November 13, 1970 by a Determination Order granting claimant temporary total disability benefits from the date of injury to September 14, 1970, and making no award for permanent partial disability. Between September 14, 1970 and July 13, 1971 claimant

had occasional pains in his back which he testified appeared to be in the same area as that injured in the original injury. On July 13, 1971 claimant consulted Dr. Arthur Eckhardt concerning these pains. Dr. Eckhardt advised rest and continuation of the use of muscle relaxants, heat, and massage at home.

On August 11, 1971 claimant requested a hearing by the Workmen's Compensation Board. Claimant asserted that his then-existing back pains were caused by the August 12, 1970 injury, and that he was entitled to further medical care and treatment and additional compensation for that injury.

At the hearing claimant testified to the fact that he had been having pain and that the pain appeared to him to be in the same area of his back as that which was injured in the original injury. However, claimant produced no expert medical testimony to show a causal relationship between the original injury and the then-existing symptoms. Claimant testified that the occasional "flare-ups" of back pain were a source of discomfort to him. However, it does not appear from the testimony that the pain was disabling in any way.

The hearing officer concluded that claimant had not shown either (1) that there was a causal connection between the injury of August 12, 1970 and the medical treatment which claimant obtained in July 1971; or (2) that his back pain was disabling. Claimant's request for further benefits was therefore denied. The hearing officer's order was affirmed by the Workmen's Compensation Board, but the circuit court reversed. The employer appeals from the order of the circuit court.

We have reviewed the record in this case de novo. Hannan v. Good Samaritan Hosp., 4 Or App 178, 471

P2d 831, 476 P2d 931 (1970), Sup Ct review denied (1971). On the issue of causation, we agree with the hearing officer and the Board ...


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