Laymon v. SAIF Corp.

VAN HOOMISSEN, J. Claimant appeals from an order of the Workers’ Compensation Board that reduced the referee’s award of permanent total disability. We review de novo. Claimant concedes that physical incapacity alone has not rendered her permanently and totally disabled. She is therefore required to show a reasonable effort to obtain employment before she is qualified for permanent total disability, ORS 656.206(3),1 unless she can show that she is completely incapacitated and that it would be futile for her to attempt to become employed. See Morris v. Denny’s, 50 Or App 533, 623 P2d 1118 (1981); Butcher v. SAIF, 45 Or App 313, 608 P2d 575 (1980). She contends that she is excused from the requirements of ORS 656.206(3). The referee stated: “Considering the medical and nonmedical factors, I conclude that there is no realistic likelihood based upon existing occupational abilities that claimant will be able to sell her services to any employer and therefore find she is permanently and totally disabled.” On review, the Board adopted the referee’s findings of fact. It concluded, however: “Although we agree with the Referee that claimant suffers from some serious social/vocational obstacles to employ-ability, we do not believe that they are serious enough, when combined with her fairly moderate impairment (moderate enough that no physician believes that surgery is warranted) that permanent total disability is warranted. All of claimant’s treatment for her injury has been conservative, and all of claimant’s physicians agree that claimant is physically capable of doing some form of work. Claimant has been successfully retrained for an occupation suitable to her physical restrictions, but she has made minimal efforts to find work. We do not find the record to indicate that claimant is excused from the ORS 656.206(3) seek-work requirement by Butcher v. SAIF, 45 Or App 313 (1980).” [149] Accordingly, after considering the referee’s findings and all other relevant evidence, the Board reduced claimant’s award to 70 percent permanent partial disability. We agree with the Board that the record does not support the referee’s finding that it would be futile for claimant to seek employment. All of the treatment for her injury has been conservative. All of her doctors agree that she is physically capable of doing some form of work. She was enrolled in a vocational rehabilitation program where she progressed satisfactorily and completed the course with high marks for speed and dexterity. The Field Services Division regarded her as rehabilitatable and able to make at least a part-time income. She is neither illiterate nor inarticulate. She is an avid reader. She would not be precluded from light work requiring simple written instructions or verbal communications. Her limited formal education is but one indicator of her ability. We have denied permanent total disability to claimants with limited formal education when that deficiency had little or no impact on other indicators of ability. See Owen v. SAIF, 33 Or App 385, 576 P2d 821 (1978); Williams v. SAIF, 20 Or App 208, 530 P2d 1255 (1975). In a factually similar case, Home Ins. Co. v. Hall, 60 Or App 750, 654 P2d 1167 (1982), rev den 294 Or 536 (1983), the claimant was a 57-year-old woman with a tenth-grade education and no special job skills. She contended that her physical condition plus other non-medical factors rendered her permanently and totally disabled. We held that she had failed to prove that she was excused from the requirements of ORS 656.206(3). Likewise, the totality of the evidence here does not persuade us that claimant is excused from the requirements of ORS 656.206(3). Affirmed. Footnotes [1] ORS 656.206(3) provides: “The worker has the burden of proving permanent worker is willing to seek regular gainful employment and that the worker has made reasonable efforts to obtain such employment.”