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Archer v. Archer10/30/1991
COURT OF APPEALS OF OREGON
CA No. A63020
1991.OR.40401 ; 109 Or. App. 349; 819 P.2d 748
Decided: October 30, 1991.
IN THE MATTER OF THE COMPENSATION OF GILBERT ARCHER, JR., CLAIMANT. SOUTHWEST FOREST INDUSTRIES, PETITIONER,
v.
GILBERT ARCHER, HARRY & DAVID, INC., AND SAIF CORPORATION, RESPONDENTS
Judicial Review from Workers' Compensation Board. Nos. 86-10377, 86-16025.
H. Scott Plouse, Medford, argued the cause for petitioner. On the brief were Kimberly D. Wallan and Cowling & Heysel, Medford.
John A. Reuling, Jr., Assistant Attorney General, Salem, argued the cause for respondents Harry & David, Inc. and SAIF Corporation. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
No appearance by respondent Gilbert Archer.
Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.
Joseph
Petitioner seeks review of a Workers' Compensation Board order that reversed the referee and awarded claimant compensation for aggravation of his condition. We reverse.
In April, 1984, claimant experienced back pain after lifting a motor while working for petitioner. A chiropractor diagnosed dorsal lumbar back strain. He and an osteopath also recommended that claimant seek psychological counseling for preexisting emotional problems. In July, 1984, petitioner accepted the injury claim. Claimant returned to work but still experienced back pain. Petitioner denied that the pain was compensable. In April, 1985, the referee approved a settlement stipulation and issued a disputed claim settlement order. ORS 656.289(4).
The settlement order provides:
"The parties stipulate as follows:
"(1) That on or about April 19, 1984, Claimant filed a Form 801 Report of Occupational Injury or Disease alleging that he injured his upper, mid and low back during the course of employment on April 10, 1984. The Employer accepted the claim in accordance with the applicable statutes and regulations. Subsequently, Claimant complained of continuing problems to his upper, mid and low back. These problems were diagnosed as having a psychiatric or psychological origin. The Carrier denied the compensability of the present problems and psychiatric origin of them on July 12, 1984. The Claimant requested a hearing.
"(2) The parties each have substantial evidence to support their contentions:
"(a) The Claimant contends that his present problems with his upper, mid and low back are a continuing result of industrial injury.
"(b) The Employer contends that Claimant's problems with his upper, mid and low back have no physical etiology but are due to psychiatric and psychological problems. That these problems are unrelated to and did not arise out of or during the course of Claimant's employment with the Employer or were they caused, aggravated, worsened, or
contributed to by the industrial injury. That the psychiatric problem is pre-existing and unrelated to the industrial injury. * * *
"(3) That it appears to the parties that a bona fide dispute exists as to the compensability of Claimant's claim that his present problems are a result of industrial injury and that the matter should be settled by a lump sum payment of $3,000.00 to Claimant by the Carrier under the provisions of ORS 656.289(4). That Claim
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