dissenting.
This workmen’s compensation case involves only the extent of claimant’s disability. It is purely a fact question which we must decide from reading a record. In effect, we sit as a three-man jury.
As we noted in Hannan v. Good Samaritan Hosp., 4 Or App 178, 182, 471 P2d 831, 476 P2d 931, Sup Ct review denied (1971):
“* * * In many instances the type of claim which results in litigation under the Workmen’s Compensation Law, like many claims arising out of automobile and other types of accidents, must be valued by application, not only of law, rules of evidence and logic, but also by application of experience, intuition, philosophy and probably other factors.”
*7• This- is such, a case, and my view of it leads me to the conclusion that the claimant here.is not totally disabled.' I do believe that he is seriously disabled, and would feel more comfortable in my position if the accident had. happened after, rather than before, the date of the 19G7 amendment which increased the maximum award allowable for unscheduled injuries from 192 degrees to 320 degrees. Nevertheless, I would adopt the opinion of the Workmen's Compensation Board, which was:
“ORDER ON REVIEW
“The above-entitled matter involves an issue of the extent of permanent disability sustained by a 44 year old equipment .operator as the result of a back injury incurred on June 7,1967. More particularly, the issue is one of whether the claimant, as a result of his accident, is entitled to permanent total disability on the basis that he can no longer work regularly at a gainful and suitable occupation.
“The accident occurred shortly before the effective date of the 1967 amendment which increased the maximum award allowable for unscheduled injuries from 192 to 320° and removed the requirement that unscheduled disabilities be evaluated by comparing the effects of the injury to any of the scheduled injuries.
“Pursuant to ORS 656.268, the disability was determined to be 106°. Following hearing the award was increased to the maximum of 192°.
“The claimant is presently self-employed having purchased a fishing boat and running a herd of cattle. The claimant contends that prospective returns from capital investments do not represent earning capacity, and at the same time contends that a financial loss from such activity is proof of lack of earning capacity. Both activities have involved the personal physical activities of the claim*8ant. The evidence reflects that he is capable of performing the work. The fact that fishing may be seasonal does not invoke the factor of lack of regu: larity of work. All fishermen would qualify for permanent total on this basis. The fact that he skippers the boat but does not haul in crab nets still bespeaks of capabilities inconsistent with a claim of permanent total.
“The Board concurs with the claimant that medical evidence is not required to support a claim of permanent total disability. The Board concurs with the Hearing Officer, however, that the totality of the evidence does not reflect total disability for purposes of compensation. # * # * »
For the foregoing reasons I respectfully dissent.