Hoffman v. Bumble Bee Seafoods (No. 29147)

*254 LANGTRY, J. Defendant employer appeals from a circuit court finding in favor of a claim for workmen’s compensation. The hearing officer had denied the claim and .the Workmen’s Compensation Board had reversed, al-Jowing it. The only question is whether the claimant carried her burden of proving that her back injury arose out of and in the course of employment. She worked as a fish, filleter' and scaler in defendant’s fish processing plant. In her claim, filed July 8,1971, she said .she was' injured in .the ribs and vertebrae on June 7, ',1971 “while scaling shad & filleting bass.” Claimant- had been to several physicians and gave them inconsistent statement's about the origin of her back problem. The physicians’ reports consistently ' commented on claimant’s obesity as a' caiise. of her trouble.::.•’ ■ . ; The inconsistencies in her testimony caused the hearing.'officer to .conclude she had failed" to carry her burden of proof, although he said: “It may well be that claimant’s disability could have been .caused, partially caused.or worsened by her .work — tbe cold/ thedish lifting,4be movements, the slips and falls;. tlie..evidence,.However,•• eleaiily fails to make a causative’'connection.” '' On review the board' said: “It appears to the' Board" áe 'eopcurr.ehce/of claimant’s obesity and the effort of lifting the fish cap a. .regular basis, combined to. produce thq-rback pain which' disabled her.' Undoubtedly, J>otb the obesity and the work effort were 'each' material contributing factors. Nevertheless, the .law.is well settled that an employer takes a workman"ás he *255 finds: him and. the employer is liable for the disabling .results of claimant’s work activity.” This language was repeated by the circuit judge in his letter opinion which upheld the board. The '"hearing officer and ■ the* board wrote extensive .opinions, explaining their conclusions. In them, we note no -comment on some testimony we consMer relatively important. The physicians had'commented on claimant’s obesity as a cause of her complaint. None of their , reports, tells us her height and. weight'at the .-time they examined or treated, her,. But in her testimony before the hearing officer in March 1972 claimant 'stated'that'she had reduced by IQ:: pounds, since September 1971 and that she still had no relief from her back tróttblé.' The claimant’s testimony-in this regard is uneontradicted. Dr. Thompson,)who made thebast medical report we have, on November .16,-1971-reported that on July 26 she was seen by Dr. Eilers, an orthopedist, Who-'recommended that - she-lose- weight.. -None of the physicians’ reports .indicated the physicians had seen her since then. This evidence is persuasive in 'arriving át "'a 'conclusion "that a-' éáiisál connection between the" work'áhd'the injury was proven: -SeeMlis-cussion about the weight of claimant’s testimony non-..eerning,-aback injury in Uris v. Compensation Department, 247 Or 420, 427 P2d 753, 430 P2d 861 (1967). Our de novo review leads us to agree with'-the boardmndAeircuii judge. . N.:.df- .uA^Hb:'-' a Affirmed.