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Hunt v. Hunt12/21/1994
ent and unpersuasive and relied on Gray's opinion.
Employer argues that, in determining whether claimant is entitled to PTD, ORS 656.245(3)(b)(B) requires the referee and the Board to consider impairment findings and that only the attending physician may make such findings. ORS 656.245(3)(b)(B) provides:
"A medical service provider who is not an attending physician cannot authorize the payment of temporary disability compensation. Except as otherwise provided in this chapter, only the attending physician at the time of claim closure may make findings regarding the worker's impairment for the purpose of evaluating the worker's disability."
Claimant argues that, because his claim is for an unscheduled disability, impairment findings are not
required. OAR 436-35-005(8) defines unscheduled disability as
"the permanent loss of earning capacity due to a compensable on the job injury or disease as described in these rules, arising from those losses contemplated by ORS 656.214(5) and not to body parts or functions listed in ORS 656.214(2)(a) through (4)."
The Board concluded that Gray's opinion considered claimant's "total condition, including the effects of the medications prescribed for the compensable condition," and did not constitute impairment findings as described in ORS 656.245(3)(b)(B).
Neither the relevant statutory sections nor the relevant regulations require impairment findings as a prerequisite to a finding of PTD for an unscheduled disability. In Gornick v. SAIF, 92 Or.App. 303, 307, 758 P.2d 401 (1988), we said that " ermanent total disability may be established by any evidence that demonstrates to the satisfaction of the trier of fact that, as a consequence of a compensable injury , the claimant has been rendered unable to sell h services on a regular basis in a hypothetically normal labor market." (Emphasis supplied.)
Here, the referee and the Board rejected the opinion of claimant's attending physician, Misko. Claimant's consulting physician, Gray, and both employer's and claimant's vocational counselors offered evidence that the referee and the Board considered in making their determination that claimant is permanently and totally disabled. That evidence demonstrated to the satisfaction of the Board that "claimant has been rendered unable to sell h services on a regular basis" in the labor market. Because ORS 656.206(1)(a) does
not require the Board to make impairment findings when deciding whether to award PTD for an unscheduled disability, the Board did not err in relying on the opinion of a nonattending physician.
Affirmed.
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