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Muller v. Sears

April 9, 1973

MULLER, RESPONDENT,
v.
SEARS, ROEBUCK AND CO., APPELLANT



Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge.

Richard H. Williams, Portland, argued the cause for appellant. With him on the briefs were Laurence F. Janssen, and Dezendorf, Spears, Lubersky & Campbell, Portland.

Dan O'Leary, Portland, argued the cause for respondent. On the brief were Garry L. Kahn, and Pozzi, Wilson & Atchison, Portland.

Schwab, Chief Judge, and Fort and Thornton, Judges.

Schwab

The sole question in this workmen's compensation appeal is what is the proper award of permanent partial disability for claimant's unscheduled back injury.

At the time of his injury on February 21, 1969, claimant, who was then 19 years old, had been employed by Sears, Roebuck and Co. for a year and one-half. He had started with his employer as a busboy and been promoted to hardware department sales, a job which involved the selling and handling of heavy merchandise.

After the injury claimant saw a doctor, describing an incident in which he felt a sharp pain in his back while lifting merchandise. The doctor diagnosed his injury as a back strain and placed him under conservative treatment. He continued to work at his same occupation for several months during which time his discomfort continued.

He ultimately saw an orthopedic surgeon who, based on an examination made on September 16,

1969, diagnosed his condition as spondylolisthesis and indicated that a spinal fusion would probably be desirable. A fusion was performed on February 10, 1970. Based on an examination made on June 24, 1970, the surgeon stated in a written report:

"I feel that the patient is able to return to work, and he is able to carry out his duties satisfactorily, except for heavy lifting. I do not believe he should do this. I believe that ultimately he will be able to carry on perfectly normal. The only precaution in his work is the heavy lifting."

Claimant then returned to essentially the same kind of work with the same employer, but in a different department. He continued in this employment for a year and one-half, and was then terminated. The record is silent as to why. He thereafter engaged in part-time work while enrolled in community college courses under the auspices of the Department of Vocational Rehabilitation. If he continues for the prescribed two-year period he will obtain an associate degree in business.

During the year-and-one-half period in which the claimant continued to work for his pre-injury employer, he returned to the surgeon complaining of some discomfort and exercises were prescribed. Claimant last saw the surgeon on December 9, 1971. ...


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