dissenting.
We are directed on remand to determine whether the last arrangement of compensation, a stipulation of December 16, 1981, contemplated that claimant would have symptomatic flare-ups of his compensable condition. Gwynn v. SAIF, 304 Or 345, 745 P2d 775 (1987). Although the medical evidence existing at the time of the stipulation indicated that claimant had “chronic” permanent back pain and, in our view and that of the referee and Board, it appeared to contemplate future symptomatic flare-ups, the Supreme Court’s opinion requires that there be evidence that the stipulated award specifically took into account anticipated future flare-ups. Gwynn v. SAIF, supra, 304 Or at 350. Here, there is no evidence that it did. That it was “knowable” that claimant would have symptoms is not sufficient. Accordingly, I would treat this as an ordinary aggravation claim for benefits for disability not anticipated at the time of the last arrangement of compensation.
The question, then, would be whether claimant is entitled to benefits for time loss after the last arrangement of compensation. The evidence is that he experienced an episode of pain and 13 days of total disability after an extended vacation, during which he spent many hours in a car, and that the original compensable injury is a material contributing cause of his pain and disability. See Grable v. Weyerhaeuser Company, 291 Or 387, 631 P2d 768 (1981). Claimant is entitled to benefits for time loss pursuant to ORS 656.273 if the evidence shows that his condition “worsened.” Gwynn v. SAIF, supra, 304 Or at 352. Because his condition became worse to the point that he was totally disabled, although only temporarily, and because that was not anticipated, his condition “worsened” as a matter of law. Gwynn v. SAIF, supra, 304 Or at 352. I would conclude, therefore, that, under the Supreme Court’s analysis in Gwynn, he is entitled to benefits for temporary total disability.
I would reverse and remand for acceptance of the claim and, therefore, respectfully dissent.