Mathis v. Modoc Lumber Co.

WARREN, J. This case is on remand from the Supreme Court for reconsideration in the light of Gwynn v. SAIF, 304 Or 345, 745 P2d 775 (1987). Claimant has been awarded benefits totalling 45 percent unscheduled permanent partial disability for a back injury. We affirmed, without opinion, the Board’s determination that claimant had not suffered an aggravation so as to qualify for additional benefits under ORS 656.273. 82 Or App 742, 735 P2d 380 (1987). On remand, the first question is whether the last arrangement of compensation, a stipulation of December 16, 1981, contemplated that claimant would have symptomatic flare-ups of his compensable condition. Gwynn v. SAIF, 304 Or at 353. On the basis of medical evidence existing at the time of the stipulation indicating that claimant had “chronic” permanent back pain, we find that the permanent aspects of claimant’s injury created a probability that disabling symptoms would come and go and that the stipulation contemplated future flare-ups of symptoms similar to those that led claimant to file this aggravation claim. See Gwynn v. SAIF, 91 Or App 84, 754 P2d 586 (1988). We now address whether claimant is entitled to benefits for his time loss after the last arrangement of compensation. The evidence is that he experienced an episode of pain and 13 days of total disability after an extended vacation, during which he spent many hours driving in a car. Assuming that the original compensable injury is a material contributing cause of the pain and disability, see Grable v. Weyerhaeuser Company, 291 Or 387, 631 P2d 768 (1981), claimant is entitled to benefits for time loss pursuant to ORS 656.273 only if the evidence shows that his condition became worse than what was anticipated at the time of the last award. Gwynn v. SAIF, supra, 304 Or at 352. Even assuming claimant’s condition “waxed” to the point that he was totally disabled and therefore “worse,” Gwynn v. SAIF, supra, 304 Or at 352; but see Gwynn v. SAIF, supra, 91 Or App at 86-87 (Warren, J., dissenting), because the award anticipated extensive future periods of disability and because he was disabled from work for only 13 days, he does not qualify for temporary total disability benefits under the analysis in Gwynn v. SAIF, supra, 304 Or at 353. [70] Affirmed.