dissenting.
The Board’s opinion — adopted by the majority — is flawed in three primary respects: first, it blurs the distinction between claimant’s burden of proof to show the extent of her disability with respondent’s burden to show that claimant unreasonably failed to follow medical advice; second, it equates the question whether claimant failed to follow “medical advice” with the question whether she achieved a recommended “weight loss”; and third, it misapplies the “reasonableness” criteria of Clemons v. Roseburg Lumber Company, 34 Or App 135, 578 P2d 429 (1978). Accordingly, I dissent.
1. As a threshold matter, the majority errs in allocating the burden of proof to claimant on the issue of whether or not she “unreasonably failed to follow medical advice.” The majority agrees with the Board’s conclusion “that, where a case involves the rating of disability and the issue is raised, the burden of proof is on the claimant to show that he or she did not unreasonably fail to follow medical advice to lose weight.”
Claimant weighed 300 pounds when she was hired. She did not exceed that weight at any time during her employment; respondent does not contend otherwise. Claimant is entitled to compensation for the disabling effects of her preexisting, nonindustrial condition, where that condition and her work combined to produce her disability. See Hoffman v. Bumble Bee Seafoods, 15 Or App 253, 515 P2d 406 (1973). Her burden is to establish the extent of that disability. Clemons v. Roseburg Lumber Company, supra, 34 Or App at 137. In the present case, the referee determined that claimant’s disability was “in excess of 30 percent.” When respondent seeks to reduce claimant’s disability award by contending that she “unreasonably failed to follow medical advice,” that argument is in the nature of an affirmative defense and the burden of proof is properly allocated to respondent. See Folmer Ice Cream Co. v. Workmen’s Comp. App Bd., 17 Pa Cmwlth Ct 34, 330 A2d 584 (1975).
2. The linchpin of the majority’s analysis is that claimant “unreasonably failed to follow medical advice” to lose weight. Respondent contends that the record overwhelmingly demonstrates that claimant had consistently been advised of the necessity of substantial weight loss. In fact, the *25record does show that claimant was advised by Drs. Todd and Stellflug as early as June, 1979, to lose weight and that Dr. Todd had continually thereafter so advised claimant.
Respondent, however, cites nothing in the record to show that Drs. Todd or Stellflug prescribed any type of weight loss regimen for claimant. Indeed, Dr. Todd acknowledged in his November 21,1980, report to respondent that he did “not engage in weight control programs, and, therefore, shall not pretend to monitor [claimant’s].”
In this case of first impression, involving a reduction of an obese claimant’s disability benefits for her alleged unreasonable failure to follow “medical advice,” we need to examine carefully the Board’s use of the term “medical advice.” As acknowledged by the majority, the instant facts differ from Clemons; in that case the failure to follow medical advice involved a recommended surgical procedure. In Clemons, therefore, the surgery was the recommended corrective procedure, and there was no question as to the application of the term “medical advice.”1 In the present case, however, the question is not so easily resolved. We may not simply examine the record to see how many times claimant was told to “lose weight.” Weight loss should properly be viewed as an objective that — barring physical impediments — can be obtained by careful adherence to a prescribed weight loss regimen. It is the unreasonable failure to follow that prescribed regimen that provides the authority, if any, for a reduction of disability benefits.2
*26The record shows that claimant received medical advice on weight loss only from Dr. Lautenbach. From June, 1979, to February, 1980, claimant paid for Dr. Lautenbach’s services herself. She testified at the hearing that, during this period of time, she could not afford to consult with Dr. Lauten-bach on a regular basis. By February, 1980, respondent agreed to pay for Dr. Lautenbach’s services. According to Dr. Lauten-bach’s October 10, 1980, report, however, claimant had seen him only twice during 1980. In that report, he stated that claimant “finally was beginning to realize the need for weight reduction.” According to his March 11,1981, report, claimant continued her therapy from October, 1980, to March, 1981, “as agreed upon.” That therapy included a 1,000 calorie per day diet as well as prescribed diet pills. Additionally, claimant, at her own expense, attended Weight Watchers in early 1981. Significantly, it was during this period of time, October, 1980, to March, 1981, that claimant achieved a 37 and one-half pound weight loss.
The record establishes, therefore, that claimant received “medical advice” only from Dr. Lautenbach and that through March, 1981, claimant followed that advice “as agreed upon.” The proper analysis, then, must focus on that period of time from April, 1981, to the date of the hearing, July, 1981— during which she lost an additional 2.2 pounds — to determine whether claimant unreasonably failed to follow Dr. Lauten-bach’s prescribed regimen for weight loss.
3. Reasonableness is a question of fact, Clemons v. Roseburg Lumber Company, supra, 34 Or App 139, citing Grant v. State Industrial Acc. Com., 102 Or 26, 46, 201 P 438 (1921), taking into account the worker’s perspective. Clemons v. Roseburg Lumber Company, supra, 34 Or App at 139. The only proof submitted by respondent with respect to the period of time at issue was the letter written by respondent and signed *27by Dr. Lautenbach. That letter is merely a series of conclusions that fails to provide any indicia of claimant’s unreasonable failure to follow Dr. Lautenbach’s advice. It clearly falls far short of the inquiry mandated by Clemons.
In summary, the majority first errs by burdening claimant — under the rubric of proving the extent of her disability — with what is in essence the task of disproving respondent’s affirmative defense. Secondly, the majority misconstrues the term “medical advice.” In so doing, it affirms the Board’s reliance on instructions given by Dr. Todd to claimant to “lose weight,” although Dr. Todd, by his own admission, was not qualified to advise claimant with respect to a weight loss regimen. And, finally, even if the letter of July 21, 1981, prepared by respondent and signed by Dr. Lautenbach, provides a colorable claim that claimant failed to follow “medical advice,” it is devoid of any evidence whatsoever that claimant unreasonably failed to do so. Taking that letter at face value, the conclusion the majority draws from it, i.e., that claimant, who in the nine preceding months had shed nearly 40 pounds, acted unreasonably because her doctor had noted no weight loss (or gain) in the last two or three of those months and had “lost enthusiasm” for the weight loss program, is itself unreasonable.
I therefore respectfully dissent.
The majority notes that the Board correctly “analogized” ORS 656.325(4) to common law principles of mitigation that are applicable to the circumstances to this case. OAR 436-54-286 was promulgated pursuant to ORS 656.325 and defines failure to follow “medical advice” in subsection (1) as the failure to submit to “recommended surgical treatment” and in subsection (2) as the “failure of the worker to remain under a doctor’s care, seek reasonable periodic examinations or participate in a treatment regimen.”
Compare, for example, Folmer Ice Cream Co. v. Workmen’s Comp. App. Bd.., supra, in which an obese claimant suffered a back injury that was inoperable due to her excessive weight. In that case, the claimant submitted to institutionalization in order to lose weight. During the two weeks she was hospitalized, her weight fell from 300 pounds to 279 pounds. However, a reversal occurred, and her weight increased to 289 pounds. She then left the hospital. The employer argued, inter alia, that the claimant’s failure to lose the required amount of weight constituted unreasonable refusal to follow medical advice under Pennsylvania law. The court, adopting the reasoning of the *26Pennsylvania Workmen’s Compensation Appeal Board, correctly distinguished weight loss as an objective from refusal of t -itment:
“ ‘[I]n this case claimant did not I- ;se the weight reducing procedures of the employer. She pursued them and obvi- isly they failed. * * * This is a case where claimant did not refuse treatment, b where the treatment did not achieve the desired results.’ ”