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Buster v. Chase Bag Co.

August 27, 1973

BUSTER, RESPONDENT,
v.
CHASE BAG CO., APPELLANT



Appeal from Circuit Court, Multnomah County. Robert E. Jones, Judge. No. 385-927.

Noreen K. Saltveit, Portland, argued the cause for appellant. With her on the briefs were Marmaduke, Aschenbrenner, Merten & Saltveit, Portland.

Raymond J. Conboy, Portland, argued the cause for respondent. With him on the brief were Dan O'Leary and Pozzi, Wilson & Atchison, Portland.

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

Foley

This is an appeal by the defendant-employer from a judgment affirming a Workmen's Compensation Board order declaring claimant permanently and totally disabled.

At the time of hearing on July 1, 1971, claimant was 49 years old. In December 1968 as a bag company employe she had sustained a trip-fall injury to her left arm and shoulder. Continuing symptoms and pain resulted in a shoulder operation on February 23, 1970. Thereafter, she underwent a program of evaluation and treatment in the physical rehabilitation center of the Workmen's Compensation Board, but limited range of motion and complaints of pain upon attempted use of the shoulder prevented her from following the prescribed exercises and her condition remained about stationary as of the time of hearing which was more than two and one-half years after her injury.

The hearing officer concluded that 67 degrees for partial loss of use of the left arm was adequate to reflect that disability but also awarded 48 degrees for loss of earning capacity ascribable to the unscheduled disability to her left shoulder and neck. The Workmen's Compensation Board affirmed this award and refused claimant's request to remand "for development of evidence not available at the time of hearing." In denying remand the Board mentioned that the proposed evidence did not involve physical disability and

called attention to the necessity of finality of proceedings.

Upon appeal to the circuit court a remand order was entered February 14, 1972, as follows:

"* * *

"IT IS HEREBY ORDERED AND ADJUDGED that this case and claim be and the same is hereby remanded to George Rode, Hearing Officer of the Workmen's Compensation Board of the State of Oregon, for the taking of further evidence as to claimant's contacts with Division of Vocational Rehabilitation since the hearing, and the success, if any of said Division's efforts to retrain or replace claimant in a job; and the issuance of a new opinion ...


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