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Bement v. Bement10/30/1991
COURT OF APPEALS OF OREGON
CA No. A67097
1991.OR.40385 ; 109 Or. App. 387; 820 P.2d 7
Decided: October 30, 1991.
IN THE MATTER OF THE COMPENSATION OF JOHN H. BEMENT, CLAIMANT. SAIF CORPORATION AND PACIFIC WEST BUILDING MAINTENANCE, PETITIONERS,
v.
JOHN H. BEMENT, RESPONDENT
Judicial Review from Workers' Compensation Board. WCB No. 88-13391.
Katherine H. Waldo, Assistant Attorney General, Salem, argued the cause for petitioners.
Quintin B. Estell, Salem, argued the cause and filed the brief for respondent.
Joseph, Chief Judge, and Richardson and Deits, Judges.
Joseph
Employer seeks review of a Workers' Compensation Board order that reversed the referee and awarded claimant permanent partial disability (PPD) benefits. We reverse and remand for reconsideration.
In 1987, claimant sustained a compensable back injury but received only temporary disability benefits. His work later exacerbated that injury, and he again received temporary disability benefits in January, 1989. However, he did not receive a permanent partial disability award. He requested a hearing. The referee found that, because claimant had suffered no "measurable impairment," he was not entitled to PPD.
Claimant conceded before the Board that he had suffered no measurable impairment and was not entitled to PPD under the standards. Nevertheless, the Board reversed the referee and awarded claimant 10% PPD. To support its order, it relied on Gwynn v. SAIF, 304 Or 345, 745 P2d 775 (1987), and International Paper Co. v. Turner, 91 Or App 91, 754 P2d 589, rev den 307 Or 101 (1988).
In Gwynn, the court held that a claimant who files an aggravation claim cannot recover for periods of temporary disability if those disabilities are not more than was anticipated at the time of the previous arrangement of compensation . In International Paper Co., we said that we will assume "that all relevant evidence concerning claimant's anticipated permanent disability [that] was before the referee was considered in making the award * * *." 91 Or App at 93.
The Board found that claimant's injury will inevitably cause periods of temporary disability. Relying on International Paper Co., it concluded that, in view of the evidence that claimant would experience future periods of temporary disability, the award would be deemed to have anticipated those periods. Then, relying on Gwynn, it concluded that
claimant could not be compensated for those periods of temporary disability on the basis of an aggravation claim, unless the disability were worse than was anticipated at the time of the previous arrangement of compensation . Therefore, it reasoned, the present award has to compensate claimant for future disabilities, even in the absence of measurable impairment and that claimant had sufficiently established that he "has suffered a greater permanent loss of earning capacity than is indicated by the standards." ORS 656.283(7) (since amended by Or Laws 1990 (Spec. Sess.), ch 2, ยง 20).
The Board reads International Paper Co. too literally. We will not assume that an award was based on anticipated periods of temporary disability if, as a matter of law, the claimant was precluded from receiving benefits on the basis of that evidence. The standards provided
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