Jones v. Sherrell Chevrolet
Jones v. Sherrell Chevrolet
Opinion of the Court
Claimant seeks review of an order of the Workers’ Compensation Board holding that he is no longer permanently and totally disabled under ORS 656.206(l)(a).x Claimant argues that employer did not sustain its burden to prove that he is able to maintain gainful and suitable employment. We remand for reconsideration in light of Tee v. Albertsons, Inc., 314 Or 633, 842 P2d 374 (1992).
Claimant’s compensable injuries to the head, neck, low back and legs occurred in 1962, as the result of an accident while he was working as a car salesman. He was declared permanently and totally disabled by a stipulated order in 1965. There is little evidence regarding his medical condition or work experience between 1965 and the late 1970’s. However, medical reports indicate that he began working for U.S. West selling directory advertising some time after 1980. He maintained that position until he had open heart surgery in late 1989.
In 1989, pursuant to ORS 656.206(5),
Claimant also argues that the referee found that the vocational expert misrepresented his job qualifications and, therefore, the referee’s and the Board’s reliance on that evidence was error. Because this issue is likely to arise on remand, we address it. The vocational expert’s report showed that there is a labor market in advertising sales that claimant would be qualified to enter. The referee noted that the expert’s report did make claimant appear to be qualified for highly competitive jobs, such as jobs with television stations, for which he was not in fact qualified. However, the referee did not find that the remainder of the report or its ultimate conclusion that there was some work available for claimant was inaccurate. The referee said:
“SAIF also has in evidence vocational materials suggesting that there is a substantial labor market for claimant for advertising sales. I must note that these same vocational materials, in attempting to fix claimant’s employability specifically, misrepresent his educational background and job skills to make him appear employable in connection with*494 highly competitive jobs such as those with television stations.” (Emphasis supplied.)
The Board did not err in relying on the vocational expert’s report.
Reversed and remanded for reconsideration.
ORS 656.206(l)(a) provides:
“ ‘Permanent total disability’ means the loss, including preexisting disability, of use or function of any scheduled or unscheduled portion of the body which permanently incapacitates the worker from regularly performing work at a gainful and suitable occupation. As used in this section, a suitable occupation is one which the worker has the ability and the training or experience to perform, or an occupation which the worker is able to perform after rehabilitation.”
ORS 656.206(5) provides:
“Each insurer shall reexamine periodically each permanent total disability claim for which the insurer has current payment responsibility to determine whether the worker is currently permanently incapacitated from regularly performing work at a gainful and suitable occupation. Reexamination shall be conducted every two years or at such other more frequent interval as the director may prescribe. Reexamination shall include such medical examinations, reports and other records as the insurer considers necessary or the director may require. The insurer shall forward to the director the results of each reexamination.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.