dissenting.
I would affirm the Workers’ Compensation Board (Board) and the circuit court in their finding of permanent and total disability. The physician who performed the second fusion reported that
"[f]or reasons which I know not of,!1] there was a laminectomy done to the right of the mid-line between L-3 and L-4. Enough bone was removed to definitely weaken the pedicle at that level and there are also some small spicules of bone in the soft tissues at that level.”
In a subsequent report that physician reported "there is seen to be motion between L-4 and L-5 and possibly between L-5 and S-l” and in a further report that;
* * * *
"As far as manual work is concerned, he is totally and permanently disabled. There are some things he could do on a wage earning basis, such as be a custodian, if it involved not too much bending or lifting; a watchman or what he would like to do, if such a job were available, work for the Wild Life and Game division of the State of Oregon.
"I think his employer should see what he can come up with in regard to possible part-time work at least or he should be referred once again to Rehabilitation to see if they can provide him with something. If all these efforts fail, he would unfortunately have to be considered totally and permanently disabled.” (Emphasis supplied.)
The Board properly focused upon the limitations which the medical evidence attached to those things which claimant might do.
When claimant inquired about employment as a Pinkerton guard and disclosed that he had undergone *816low back surgery he was informed that it would be useless to file a job application.
Claimant’s commendable candor in admitting limited hunting, fishing and repair of his personal car should not exclude him from the statutory definition of "permanent and total disability.”2
In my opinion the medical evidence of permanent and total disability outweighs the nonmedical evidence that claimant is capable of obtaining suitable regular and continuous work. Compare Wilson v. Weyerhaeuser Co., 30 Or App 403, 567 P2d 567 (1977), in which "[t]he surgery was successful and claimant’s treating physician concluded that the permanent residual effects of the injury were of moderate severity” but we still found permanent and total disability. 30 Or App at 405.
I agree with the trial judge who found that
«* * * claimant’s physical impairments, coupled with his mental capacity, education, training and age place him prima facie in the odd lot category and therefore motivation is not a factor.
"The burden had shifted to the employer to show that some kind of suitable work is regularly and continuously available to the claimant. This the employer has failed to do.”
Accordingly, I respectfully dissent.
The record contains no evidence that a myelogram was taken as part of the diagnostic work-up prior to surgery.
ORS 656.206(l)(a) reads as follows:
"As used in this section:
" '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 workman from regularly performing any work at a gainful and suitable occupation.”