Phillips v. Hammond

PER CURIAM Claimant seeks review of an order of the Workers’ Compensation Board in which it determined the amount of his permanent partial disability by applying rules that create a formula for the purpose. Claimant argues that the rules are invalid to the extent that they assign a value of zero to the adaptability factor in the formula when the claimant has returned to the claimant’s previous work; as a result they prevent any consideration of the statutory factors of age and education. ORS 656.214. In Carroll v. Boise Cascade Corp., 138 Or App 610, 910 P2d 1111 (1996), we held under a different version of the rules that such a provision was invalid. The rules involved in this case are subject to the same defect that we identified in Carroll and are invalid for the same reasons. As a consequence, claimant’s award must be recalculated. Claimant’s arguments concerning the rate at which he is to receive permanent partial disability are premature, as the Board has not yet determined that he is entitled to any particular rate. See Hamlin v. Salem Area Transit, 137 Or App 497, 501, 905 P2d 245 (1995). His remaining arguments do not require discussion. Award of permanent partial disability reversed and remanded for reconsideration; otherwise affirmed.