Allison v. State Accident Insurance Fund Corp.

VAN HOOMISSEN, J. The question in this workers’ compensation case is the extent of claimant’s disability. The referee awarded permanent total disability. On review, the Workers’ Compensation Board concluded that claimant had sustained 60 percent unscheduled right shoulder disability. We review de novo and affirm. Claimant sustained a compensable injury to his right shoulder when he fell on a pile of lumber. He underwent two surgeries. His treating physician concluded that his right shoulder and arm pain were caused by cervical osteoarthritis and disc disease, resulting in significant disability of the shoulder. He did not feel that claimant could return to carpentry, his occupation for 30 years. Claimant complains of severe pain and physical limitations. The referee and the Board both found that his complaints substantially exceeded any complaints made by him to his treating physician and both disregarded his testimony on that point. We give great weight to the referee’s findings of credibility. Hannan v. Good Samaritan Hosp., 4 Or App 178, 471 P2d 831, 476 P2d 931 (1970), rev den (1971). Accordingly, we evaluate claimant’s disability based on the medical and vocational reports without regard to his testimony about his pain and limitations. Claimant’s disability is isolated in his right shoulder and arm. While severe, it does not affect his ability to use the rest of his body. The Board found that the objective medical findings alone did not warrant a finding of permanent total disability. We agree. There are two types of permanent total disability: one arising entirely from medical or physical incapacity, and the other arising from conditions of less than total medical or physical incapacity plus additional conditions such as age, education aptitude, adaptability to nonphysical labor, and mental and emotional condition, which together result in permanent total disability. Wilson v. Weyerhaeuser, 30 Or App 403, 567 P2d 567 (1977). Unless a claimant shows that he comes within the first type of total disability, making it futile to attempt to find work, he must make reasonable efforts to [137] obtain employment before an award of permanent total disability will be granted. ORS 656.206(3);1 see Home Ins. Co. v. Hall, 60 Or App 750, 654 P2d 1167 (1982), rev den 294 Or 536 (1983); Butcher v. SAIF, 45 Or App 313, 608 P2d 575 (1980). We agree with the Board’s conclusion that claimant has not made reasonable efforts to find suitable work. The record reflects that, while he appeared to cooperate in placement efforts, he did not follow through on his vocational counselor’s suggestions. He placed unreasonable wage requirements on the jobs he would accept, and he rejected employment opportunities that he could perform as being beyond his physical or medical capabilities. As a result of his non-cooperation, his file with Vocational Planning Consultants was closed. He was also interviewed at the Callahan Center, which reported that it was “unable to determine his physical tolerance for more specific job possibilities because [he] refused to stay at the Center and complete an evaluation.” His trips to the employment office and his CETA inquiries appear, in light of his history with employment consultants, to be little more than perfunctory attempts to satisfy the statutory requirement that he seek work. Affirmed. Footnotes [1] ORS 656.206(3) provides: “The worker has the burden of proving permanent total disability status and must establish that the worker is willing to seek regular gainful employment and that the worker has made reasonable efforts to obtain such employment.”