Chapel of Memories v. Davis

GRABER, J.,

concurring in part, dissenting in part.

I concur in the majority’s holding that the claim was properly reopened. However, I do not agree that claimant is entitled to temporary total disability benefits (TTD) and, to that extent, I respectfully dissent.

As the majority recognizes, claimant has the burden to establish his entitlement to TTD. Smith v. SAIF, 302 Or 396,400-01, 730 P2d 30 (1986); see also ORS 656.266. He must “prove a willingness to seek work in order to obtain TTD benefits * * *.” Cutright v. Weyerhaeuser Co., 299 Or 290, 300, 702 P2d 403 (1985). In my view, claimant failed to carry that burden. Accordingly, I would hold that he withdrew from the workforce before the surgery was recommended or performed and, therefore, that he is not entitled to TTD.

The majority relies on four things in reaching the conclusion that claimant remained in the workforce until the time of his surgery: his testimony that he had not “retired”; his testimony that he quit seeking work in April, 1985, 1 because his back hurt; his testimony that he would be willing *237to accept a job within his physical limitations; and medical evidence that his back was worse in April, 1985, than in April, 1984, the time of the last arrangement of compensation (60 percent unscheduled permanent partial disability). Those factors do not lead to the majority’s conclusion.

First, a claimant can withdraw from the workforce even if he does not consider himself to be “retired.” Second, a person who withdraws from the workforce because of his physical condition nonetheless withdraws from the workforce. As we held in Karr v. SAIF, 79 Or App 250, 252-53, 719 P2d 35, rev den 301 Or 765 (1986): *238Third, a claimant who passively awaits a suitable job offer is not seeking work.

*237“Claimant asserts that he is entitled to time loss, because his retirement was not voluntary in that it was necessitated by his physical condition. Whatever the reason, claimant has withdrawn from the work force. Temporary total disability is awarded for lost wages, see ORS 656.210(1), and a person who has withdrawn from the work force has no lost wages. Cutright v. Weyerhaeuser Co., supra, 299 Or at 302.”

*238Finally, I do not agree that the medical evidence supports claimant’s decision to cease looking for employment. Nothing in the record suggests that he acted on the advice of a physician, including the surgeon, in stopping his search for work. Although Dr. Smith noted in April, 1985, that claimant’s back was “worse,” there is no indication that he was not well enough to continue to look for light work. Indeed, nearly a year after he had ceased to look for work, the first referee found that the pre-surgery medical evidence did not establish an aggravation of claimant’s condition since April, 1984, when he was looking for work. The rejection of claimant’s applications for Social Security disability benefits before the surgery also suggests that he was not so incapacitated that he could not seek employment within the limits his doctors had specified. He ceased looking for work over a year before the surgery (using the majority’s April, 1985, date), during a period when his then treating physician recommended against surgery and before the examining surgeon first suggested the operation.

In short, claimant’s credibility does not dispose of the case, as the majority asserts. Even if his testimony is believed, the evidence is in conflict on the issue of withdrawal from the workforce. In my view, although the question is close, the analysis relied upon by the majority is not sufficient to sustain claimant’s burden to prove TTD.

Only by giving claimant the benefit of the doubt can we find that he continued to look for work until April, 1985. At the second hearing, he listed a number of employers with whom he had sought jobs in 1983, 1984, and 1985. Five employers were listed with the notation “85.” In the first hearing, claimant testified:

“Q. That’s fine. Since April of 19— well, say, since April of 1985 have you *237been looking for work?
“A. No.
“Q. Why not?
“A. ‘Cause my back’s been bothering me so bad I couldn’t.
“Q. Okay. Are you retired?
“A. Am I retired? Yes.
“Q. Are you retired? I mean —
“A. No. No, I’m not retired.
“Q. Okay.
“A. No. Excuse me. No, I’m not retired. No. * * *
“Q. When did you stop looking for work, sir?
“A. Oh, I’d say it was — oh, I don’t know. Probably — oh, I don’t know, May or June, someplace in there.
“Q. Of what year?
“A. Of‘84.
“Q. So you looked for work a month or two in ‘84, and then just stopped?
“A. Yeah. It seemed like — can I say more?”

The topic changed at this point in transcript.

The first referee, whose order was not appealed, found that claimant “testified that he looked for work one or two months after April 1984 [the date of the stipulated Determination Order].” Claimant’s various statements can be reconciled if he looked for work in 1983 and 1984 and contacted the five employers shown as “85” on the list at some time between January and April, 1985.