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Westfall v. Rust International11/5/1992
plex medical question" and that resolution of the case therefore turned on the weight of medical opinion. He pointed out that the Board itself, citing Kassahn v. Publishers Paper Co., 76 Or App 105, 708 P2d 626 (1985), rev den 300 Or 546 (1986), had labeled that Conclusion a "Conclusion of law." In Kassahn, the Court of Appeals held:
"The Board may be persuaded by lay testimony on medical issues, but if the Board finds the lay testimony unpersuasive or insufficient to resolve complicated medical issues, it is not bound by that testimony and may require expert medical opinion to resolve the issue." 76 Or App at 109 (citation omitted).
Claimant's lawyer argued that the Board "did not find claimant's testimony unpersuasive" or "insufficient." He contended that the Board therefore erred in "interpreting ORS 656.295(5) and Kassahn to require expert medical analysis of the Claimant's credible testimony." Claimant's lawyer further argued that, because the Board's Conclusion regarding claimant's symptoms was a Conclusion of law, the Board was precluded from taking the action that it took. According to claimant's lawyer, although ORS 656.295(5) allows the Board to remand a case to the referee for the taking of further evidence if the Board determines that the record is "improperly, incompletely or insufficiently developed," it does not permit the Board simply to reverse a legal Conclusion, such as the referee's "legal determination" that a case is "simple." He argued that the Board's error had the effect of altering claimant's burden of proof as to the causation of his injury. Finally, he argued that, where the Board has erroneously interpreted a provision of law, the Court of Appeals, pursuant to ORS 183.482(8)(a), should set aside or modify the Board's order, or remand it for further action under a correct interpretation of the law.
Employer countered that claimant's brief presented only a "factual dispute" disguised as an issue of law; that the
Board's factual findings regarding claimant's medical condition were properly made under its power of de novo review; and that there was substantial evidence to uphold those findings. Employer also countered that claimant's argument regarding the burden of proof was "completely without merit" because, according to decisions of this court, "in all but uncomplicated cases, claimant must carry his burden of proof by a preponderance of the evidence and must prove his case through the use of competent expert evidence." As noted above, the Court of Appeals affirmed the Board's decision without opinion, Westfall I, supra, and ordered sanctions against claimant's lawyer, on the grounds that there was "substantial evidence to support the Board's decision" and that the appeal was "frivolous." Westfall II, supra, 104 Or App at 133.
In Uris v. Compensation Department, 247 Or 420, 424, 426, 427 P2d 753, 430 P2d 861 (1967), this court held:
"It is, of course, the settled rule that
"'* * * where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons.' [Citations omitted.]
"* * *
"In the compensation cases holding medical testimony unnecessary to make a prima facie case of causation, the distinguishing features are an uncomplicated situation, the immediate appea
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