Russell v. State Accident Insurance Fund

576 P.2d 376 (1978)

33 Or.App. 153

In the matter of the Compensation of Matthew T. RUSSELL, Claimant, Respondent, v. STATE ACCIDENT INSURANCE FUND, Appellant.

Court of Appeals of Oregon.

Submitted on remand February 14, 1978.

Decided March 13, 1978.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Raymond J. Conboy, Portland, argued the cause for respondent. On the brief were Pozzi, Wilson, Atchison, Kahn & O'Leary and Donald N. Atchison, Portland.

Before SCHWAB, C.J., and THORNTON and TANZER, JJ.

Submitted on remand from the Oregon Supreme Court, February 14, 1978.

THORNTON, Judge.

We conclude that this case should be remanded to the Workers' Compensation Board for a redetermination of the extent of claimant's permanent partial disability in the light of Russell v. SAIF, 281 Or. 353, 574 P.2d 653 (1978).

In Romero v. Compensation Department, 250 Or. 368, 372-73, 440 P.2d 866, 868 (1968), the Supreme Court held:

"* * * Moreover, although we must review the record de novo, we are entitled to take into account the administrative agency's expertise which develops out of dealing with hundreds of similar cases. As has been pointed out, `industrial commissions generally become expert in analyzing certain uncomplicated kinds of medical facts [and we would add nonmedical facts also], particularly those bearing on industrial causation, disability, malingering and the like.' 2 Larson's Workmen's Compensation, § 79.53, p. 303 (1961). Further, it would seem that in the type of case we have before us, where the criteria for appraising disability is at best vague and highly subjective, the administrative agency should have some leeway in developing, if possible, a pattern of decision-making by a comparison of the many cases which are presented to it."

Ryf v. Hoffman Construction Co., 254 Or. 624, 459 P.2d 991 (1969), and State ex rel. Cady v. Allen, 254 Or. 467, 460 P.2d 1017 (1969), shortly followed Romero and explained but did not change the import of the above language.

In Romero the court deferred to the expertise of the Workmen's Compensation Board (now Workers' Compensation Board) in determining the extent of the claimant's partial disability, i.e., in the setting of the *377 amount of degrees to be awarded the claimant. In several cases this court has echoed the rule that some deference to the Board on the extent of partial disability is appropriate. Hart v. SAIF, 31 Or. App. 181, 570 P.2d 92 (1977); Frantz v. SAIF, 30 Or. App. 927, 569 P.2d 31 (1977); Carlson v. Georgia Pacific, 30 Or. App. 625, 567 P.2d 614 (1977); Jenkins v. SAIF, 21 Or. App. 447, 535 P.2d 124 (1975); Surratt v. Gunderson Bros., 3 Or. App. 228, 471 P.2d 817 (1970), modified on other grounds 259 Or. 65, 485 P.2d 410 (1971); cf., Jellum v. SAIF, 31 Or. App. 1127, 572 P.2d 343 (1977).

Remanded with instructions.