dissenting.
I concur in the majority’s opinion, with one key exception. The majority defines “gainful occupation” in ORS 656.206(l)(a) to mean work for “profitable remuneration.” 314 Or at 643. The adjective “profitable” is, in my view, unnecessary, ambiguous, and potentially misleading.
A “gainful occupation” within the meaning of the statute defining permanent total disability is simply an occupation for which the worker receives a lawful wage. By contrast, if one’s only suitable occupation is as an unpaid volunteer, an upaid homemaker, or the like, one’s occupation is not “gainful.” It matters not — for the purpose of ORS 656.206(l)(a) — whether the worker’s remuneration results in a “profit.” For example, a worker who is capable of owning a print-shop that is expected to gross $50,000 per year has a “gainful occupation” even if the business happens to lose money one year, and a worker who is employable at a suitable minimum-wage job has a “gainful occupation” even if expenses make it difficult to make ends meet. The statute is intended only to define a status of permanent total disability, nothing more.
Because I would not add the undefined concept of “profitable” to the definition of PTD, I would affirm, rather than returning this case to the Workers’ Compensation Board. Accordingly, I dissent.