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Hunt v. Hunt12/21/1994
COURT OF APPEALS OF OREGON
91-11602, CA A78147
1994.OR.40648 ; 887 P.2d 372; 132 Or.App. 128
Filed: December 21, 1994.
IN THE MATTER OF THE COMPENSATION OF DARREL L. HUNT, CLAIMANT. EBI COMPANIES AND SILVER WHEEL FREIGHT, PETITIONERS,
v.
DARREL L. HUNT, RESPONDENT
Thomas M. Sheridan, Portland, argued the cause for petitioners. On the brief were Michael G. Bostwick and Davis, Bostwick, Sheridan & Bronstein
Glen H. Downs, Portland, argued the cause for respondent. With him on the brief were Gerald C. Doblie and Doblie & Associates
Before Rossman, P.J., Richardson, C.J., and Leeson, J
LEESON, Judge.
Employer seeks review of an order of the Workers' Compensation Board that awarded claimant permanent total disability (PTD). We review for errors of law. ORS 656.298(6); ORS 183.482(8). We affirm and write only to address whether the Board erred in considering evidence from a doctor who was not claimant's treating physician.
Claimant suffered a compensable back injury in 1977 while working for employer as a truck driver. He reinjured his back in 1979 and 1980. In 1982, he suffered yet another injury when he was struck by a hit-and-run motorist. Since 1982, he has had seven back and neck surgeries. Claimant's long-term treating physician is Dr. Misko, an Oregon neurosurgeon. After claimant moved to Montana, however, Misko referred claimant to Dr. Gray, a Montana physician, for pain management and evaluation. Claimant was declared medically stationary on August 3, 1990. A determination order issued on January 16, 1991, which awarded temporary disability but stated that claimant was "entitled to no additional compensation for permanent disability." An order on reconsideration issued August 30, 1991, which affirmed the January 16, 1991, determination order. Claimant sought a hearing.
At the hearing, the referee took evidence from Misko, who testified that he believed that claimant was physically capable of performing certain sedentary jobs. The referee also took evidence from Gray, who considered claimant to be permanently and totally disabled. The referee found:
"Claimant's neck is stiff and constantly painful. He as residual headaches, numb hands and arms; focal seizures of the left arm and left buttock and leg pain and numbness. The nerve root at L5-S1 on the left is scarred and swollen from previous surgeries. Claimant does not rest well and the effects of long term weariness and pain are evident on his face. He spends two-thirds of his day in bed or in a recliner. He is limited to standing no more than 3 to 4 minutes in one place. He is limited to sitting no more than one-half an hour. He sits at an angle leaning on his elbow to reduce his left hip pain. He walks only around his house and then only occasionally. He is required to climb 10 to 12 steps to bed. He has fallen while ascending this stairway. Low back bending is extremely painful."
The referee concluded that claimant is permanently and totally disabled, because he is "unable to regularly perform suitable and gainful employment." Permanent total disability is
"the loss, including preexisting disability, of use or function of any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation." ORS 656.206(1)(a).
The Board affirmed. It found Misko's opinion inconsist
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