Appeal from Circuit Court, Clatsop County. Thomas E. Edison, Judge.
Noreen K. Saltveit, Portland, argued the cause and filed the briefs for appellant.
Nicholas D. Zafiratos, Astoria, argued the cause and filed the brief for respondent.
Foley, Judge. Schwab, Chief Judge, and Fort, Judge.
This is a workman's compensation case. The hearing officer denied the claim of a work-connected back injury on the basis of claimant's failure of proof as to work-connection. The Workmen's Compensation Board reversed the hearing officer in a two-to-one decision and the trial court affirmed the Board. The employer and its insurer appeal. We reverse.
Claimant at hearing time was a 52-year-old Grandma Cookie Co. route salesman who had an 11-year history of low back pain. It is clear that he did have disability to his back on April 23, 1971, the date he alleges he had an on-the-job accident while loading his truck.*fn1 The issue is whether the disability did, in fact, result from accident or whether it came on either insidiously or was otherwise triggered.
Claimant had filed a claim for back trouble in February 1971 while working for another employer. He did not file any claim for the April 23, 1971, episode until June 7, 1971. Meanwhile, on May 11, 1971, he was examined in Portland by George S. Barton, M.D., and John Raaf, M.D., relative to a possible back operation. He gave them a history of several years of recurring back pains, becoming more persistent in recent years. Dr. Raaf's history includes the statements: "There has never been any injury that he is aware of"; and "The [back] pain came on insidiously without any history of accident * * *." On June 9, 1971, Dr. Raaf performed exploratory surgery for a protruded disk. He found no protruded intervertebral disk but found degenerative disk disease and an unstable lumbar spine. Dr. Short, an orthopedist, performed
a spinal fusion on the same date. A postscript to Dr. Raaf's report noted that about the time of discharge from the hospital after the surgery, claimant advised Dr. Raaf "that he had sustained an injury in April when he was loading his truck and it was necessary for his son to help him finish. Under these circumstances, if he did strain his back in April, one would have to consider this due to an accident." Claimant attempted to explain the inconsistencies and his failure to mention the accident earlier by saying they were due to the fact that his wife had a heart attack early in 1971 and also because he was desirous of continuing to work on account of financial problems.
Thus, whether the claimed unwitnessed accident did, in fact, occur, rested upon the credibility of the claimant. The hearing officer responded to it as follows:
"There appear to be too many discrepancies and inconsistencies in this case to be passed off as resulting from claimant's bad memory, or from a desire to 'sweat out' the back trouble because of financial problems. I believe that claimant did have disability on or about April 23, 1971. It may have been more severe than, and different from, prior episodes. However, I remain unconvinced that there was an on-the-job accident such as a slip and fall as claimant asserts. It may have been simply insidious, it may have been sneeze-triggered.
"As to the discrepancies, it seems difficult to believe for example that claimant would go to Portland, discuss plans for a possible major operation with a doctor, and, a month later go to the hospital for an operation, and not reveal an incident the consequences of which were so severe ...