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Maumary v. Mayfair Markets

August 6, 1973

MAUMARY, APPELLANT,
v.
MAYFAIR MARKETS, RESPONDENT



Appeal from Circuit Court, Lane County. Edwin E. Allen, Judge.

Thomas E. Wurtz, Springfield, argued the cause for appellant. With him on the briefs were Moore, Wurtz & Logan, Springfield.

Roger R. Warren, Portland, argued the cause and filed the brief for respondent.

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

Thornton

Claimant raises two issues in this workmen's compensation case. He first contends that he has shown himself to be within the 'odd-lot' category and entitled to an award for permanent total disability. Before the circuit court, claimant sought to introduce additional evidence into the record, and the circuit court refused either to hear the evidence itself, or to remand the case to the hearing officer. On appeal, claimant asserts that this denial was error, and he urges this court to remand the case so that the evidence may be heard by the circuit court or the hearing officer.

We reject both of claimant's contentions.

Claimant sustained his compensable injury in 1970 when he hurt his back while catching watermelons tossed from a high-bed truck. The injury necessitated

surgery, and shortly after the accident a bilateral lumbosacral laminectomy was performed on claimant. This surgery reduced, but did not eliminate, claimant's low back pain. Claimant has not worked since a few days after the accident.

A determination order originally granted claimant 64 degrees unscheduled permanent partial disability. The hearing officer increased this award to 192 degrees and the Workmen's Compensation Board affirmed. On appeal to the circuit court, the award was again increased to a total of 240 degrees unscheduled permanent partial disability, which is 75 per cent of the maximum of 320 degrees.

At the time of the injury, claimant worked for Mayfair Markets as a produce manager. He had been employed in the retail grocery business for some 20 years.

Since the injury, claimant has difficulty in either standing or sitting for any prolonged period. He cannot lift heavy weights. Both the claimant and his former employer agreed that these physical limitations would prevent claimant from again working in a grocery store.

Claimant's formal education ended after two years in a vocational high school. However, since the accident, claimant has passed GED tests, and now has the equivalent of a high school diploma. Testing at the Physical Rehabilitation Center showed that claimant functions at an upper-bright normal intellectual level with nonverbal ...


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