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Deaton v. State Accident Insurance Fund

May 14, 1973


Appeal from Circuit Court, Coos County. James A. Norman, Judge.

Dan O'Leary, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison, 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.

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


The issue in this case is the extent of disability sustained by claimant. The resolution of it leads us to a further discussion of what 2 Larson, Workmen's Compensation Law ยง 57.51, refers to as the "odd-lot" doctrine which we first cited with approval in Swanson v. Westport Lumber Co., 4 Or App 417, 479 P2d 1005 (1971), and to a discussion of what part a claimant's motivation to return to work plays in determining what is a proper award.

Claimant, having sustained a serious compensable injury, received an initial award of 192 degrees unscheduled disability and 30 degrees for partial loss of use of his right leg. Being dissatisfied with this award he requested and received a hearing, as a result of which the hearing officer awarded additional compensation of 48 degrees for his unscheduled disability, giving him a total of 75 percent of the maximum allowable award for an unscheduled disability, plus 30 degrees for the scheduled injury to the right leg. Being still dissatisfied, claimant took the matter to

the Workmen's Compensation Board which affirmed the hearing officer. Claimant then took the matter to the circuit court, which affirmed the action of the Board, and the matter is now before us. At all stages the claimant has contended that he is permanently, totally disabled.

Claimant is now 53 years old. He has a sixth-grade education, and an IQ in the dull-normal range. He is and for many years has been blind in one eye. During all of his productive years he worked as a manual laborer. From 1958 until the time of his accident, March 26, 1970, he worked for the same employer. On March 26, while working as a timber faller, he was injured when the root wad of a windfall tree he was attempting to cut rolled over him. He sustained a right pneumothorax with a suspicion of a right tenth rib fracture. Additionally, he sustained compression deformities of L2, a fracture of L3 and a suspected fracture of L1. A laminectomy at L2-3 was performed, and then a four-level spinal fusion was carried out. At the time of the surgery it was noted that the transverse process of L2, 3 and 4 of the right side were fractured and a protruding disc was also removed at the L2-3 space. Dr. C. E. Baker, who performed the surgery, indicated in his final report that claimant stated that he could not at that time return to any kind of productive work because of persistent back distress, but Dr. Baker did not express any opinion as to the extent of disability. The doctor did, however, state that he had communicated with the Division of Vocational Rehabilitation, requesting that the claimant be considered for job retraining.

On May 13, 1971, claimant enrolled in the Physical Rehabilitation Center for a period of two weeks. A psychological examination administered at the

Center by Dr. Norman Hickman indicated that the claimant had no vocational ideas and seemed little inclined to return to any type of gainful employment. The psychologist concluded that claimant was suffering from psychological problems which hindered his rehabilitation. It was the psychologist's opinion that the diagnosed psychopathology was basically chronic in nature, although it appeared to have been aggravated moderately by the injury. Dr. Hickman stated that the claimant could not be considered cooperative during the testing, and concluded that the psychological outlook for successful rehabilitation was poor.

The Center's physical evaluation included: "[P]hysical therapy reported that the patient does not show any abnormalities of gait or marked limitation or awkwardness of movement. He can ride the bicycle and use the treadmill for periods up to five minutes and has no difficulty going up and down the stairs," and "* * * it was doubtful that the patient intended to increase his participation in the program." The Rehabilitation Center's medical discharge summary concluded that there was a "moderate physical disability demonstrable at the time of discharge from the center," and that "the industrial accident is responsible for a moderate ...

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