Barker v. Farmers Packing Co.

DURHAM, J. Claimant was injured in 1974 and has not worked since. In a 1990 order, the Board found that claimant had not established a willingness to work, that he was able to do gainful, light work and that he had refused a job offer. It also found that he suffered a 65 percent unscheduled permanent total disability (PTD) and had a functional overlay but was not entitled to PTD benefits, because he could work. Claimant sought review. We remanded for reconsideration, because substantial evidence did not support the Board’s finding that claimant had a functional overlay and we could not tell whether that finding had influenced its decision. Barker v. Farmers Packing Co., 107 Or App 376, 812 P2d 22 (1991). On remand, the Board said that claimant did not have functional overlay, stated that the functional overlay finding had not affected its decision and adhered to its former order.1 Claimant seeks review of the order on remand, asserting that the Board failed to provide a reasoned explanation for its conclusion. We disagree. Although the Board did not explain why it adhered to its earlier conclusion even without proof of functional overlay, the original order and the order on remand, when read together, provide a reasoned explanation for the denial of PTD. Claimant had to prove that he is unable regularly to perform work at a gainful and suitable occupation. ORS 656.206(1)(a); Wilson v. Weyerhaeuser, 30 Or App 403, 409, 567 P2d 567 (1977). The Board found that claimant turned down gainful employment and that he could work. Claimant’s doctors felt that he could perform the offered work. Substantial evidence supported the Board’s decision. Armstrong v. Asten-Hill Co., 90 Or App 200, 206, 752 P2d 312 (1988). Affirmed. Footnotes [1] The Board’s order says: “After completing our reconsideration, subject to the following exception, we continue to adhere to our prior findings and conclusions that claimant is not entitled to permanent total disability benefits: In conducting this reconsideration, we expressly do not adhere to our prior erroneous finding that claimant has a ‘documented history of functional overlay.’ Furthermore, we wish to emphasize that our prior erroneous finding that claimant has a ‘documented history of functional overlay’ has not influenced our decision. Accordingly, as supplemented and clarified herein, we adhere to and republish our April 27, 1990 order.”