dissenting.
I dissent.
I have no quarrel with the first and third parts of the three-part test set forth on page 558 of the majority opinion. I disagree with the second part of the test for two reasons. First, we are impliedly overruling Kajundzich v. SIAC, 164 Or 510, 102 P2d 924 (1940), and Graham v. SIAC, 164 Or 626, 102 P2d 927 (1940). Second, I fear that part two of the three-part formula will prove to be difficult to follow and difficult to apply.
KAJUNDZICH AND GRAHAM DISCUSSED
The majority states:
"Second, the consequential loss in the unscheduled area is included in the scheduled formula when the medical expectation that it will accompany the scheduled loss is so great that its failure to occur would be an exceptional case. So much we believe may fairly be attributed to the legislative purpose in providing a schedule of awards for certain losses of use or function in lieu of individual predictions of lost *562earning capacity. But we do not think that this legislative assumption extends to secondary consequences beyond the scheduled loss that are merely common or probable. They must be so intrinsic to the original injury (even if delayed) that their failure to follow it would be anomalous and surprising. If the secondary consequences are of this kind, they do not give rise to recovery for unscheduled disability under ORS 656.214(5); otherwise they do.”
This test differs from the test adopted by this court in 1940 in Kajundzich and Graham. In Kajundzich, a claimant injured his foot and sought compensation for a fracture of the bones of the left ankle, as well as for an injury to the muscles, tendons, ligaments, and nerves of the left leg. A physician testified that the industrial accident destroyed the nerves to his leg, and that it caused the atrophy of his leg. Other doctors attributed the atrophy of the left leg to non-use rather than to nerve injury. This court concluded that there was substantial evidence tending to support the general finding of injury to the leg. As the court characterized the evidence, the claimant’s original injury was to his foot, and had spread to the leg.
The court held that the scheduled award did not preclude an additional award for unusual and unexpected conditions which developed as a result of the injury. With respect to the rule applicable to such situations, the court quoted with approval from Matter of Dowling v. Gates & Co., 253 NY 108, 170 NE 511 (1930), which held that:
"A claimant who has suffered a scheduled injury * * * is entitled only to an award of the amount specified in the schedule for such injury in case the effect of the injury is the usual and expected effect. If, however, some unusual and extraordinary condition develops as a result of the injury the fact that the original injury is covered by the schedule does not prevent an award for the actual, although unusual and unexpected, condition which has developed as a result of the accident. * * *” Id. at 170 NE 512.
*563In Graham, a worker with preexisting injuries to his fingers suffered total loss of function of the thumb. The plaintiff contended that "by reason of prior injuries to his fingers, and the injury to his thumb, compensation should be awarded on the basis of disability to his hand” (164 Or at 627). Because there were no compensable injuries to parts of the hand other than the thumb, this court held that compensation had to be limited to that provided by the schedule for a thumb injury, even though loss of the thumb necessarily limited use of the hand.
"The legal principles controlling herein were announced by this court in Kajundzich v. State Industrial Accident Commission, this day decided. In that case, claimant sustained an injury to his foot which resulted in disability to the leg. It was alleged and there was some substantial evidence tending to show that the injury to the sciatic nerve extended to the leg and thereby impaired its use. Under such unusual conditions the court sustained an award based on the loss of function of the leg. In the instant case it is not alleged nor is there any evidence tending to show resulting injury to the hand. The statute above mentioned provides compensation for the specific injury of which the claimant complains. Neither the commission nor the court could go beyond its terms. Where a workman’s injury is confined to his thumb and there are no unusual or unexpected complications attending injury, compensation for disability resulting from such injury cannot be made on the basis of an injury to the hand.” 164 Or at 628.
The applicable rule to be drawn from these cases is clear: Additional compensation may be awarded beyond the amount of the scheduled compensation if additional injuries to other areas of the body are sustained as a result of the scheduled injury, if such resulting injuries are unusual or unexpected. The majority correctly states that neither Graham nor Kajundzich "involved an unscheduled loss to be measured by reduced earning capacity.” This is true, but I can see no difference in substance between a Graham *564situation (where hand disability resulted from a thumb injury) and the case at bar (where back and shoulder problems allegedly resulted from loss of an arm.)
THE RULE IS OBSCURE
I fear that the persons working with this formula (the doctors, lawyers, hearings officers and litigants) will find it extremely difficult to understand and apply. The majority states that there "are limits as to how much the law can express by adjectives and adverbs”; that rules that use words such as "usual,” "expected,” or "inevitable,” create a "contest of adjectives.”
That may be true, but the test proposed by the majority will result in no improvement so far as adjectival and adverbial contests are concerned. Instead of medical witnesses being asked whether such sequelae "normally” or "inevitably” follow, they will be asked questions such as: Is the medical expectation great that the sequelae will follow the scheduled loss? Is the failure of the sequelae to follow the scheduled loss exceptional? Are the sequelae common? Are the sequelae merely a probable as distinct from an exceptional result of the scheduled loss? Are the sequelae so intrinsic to the original injury that their failure to follow it would be anomalous and surprising?
The rule, as articulated by the majority, is difficult to understand and apply. If we intend to allow compensation for all unscheduled sequelae other than those as to which the medical expectation that they will accompany the scheduled loss is so great that their failure to occur would be exceptional,1 it would be better to say that all consequential unscheduled injuries are covered unless they inevitably follow the scheduled loss.
This awkward sentence illustrates how difficult it is to state the rule.