dissenting.
The majority holds that the Board did not err in concluding that, because claimant is employable in jobs earning only one-third of her pre-injury wages, she is “gainfully” employable and is, therefore, ineligible for permanent total disability (PTD) benefits. I disagree.
We have already defined the statutory term “gainful employment” as that which “bear[s] a reasonable relationship to an individual’s experience and background, including *643prior earnings.” Frame v. Crown Zellerbach, 63 Or App 827, 831, 665 P2d 879, on recon 65 Or App 801, 672 P2d 70 (1983); see also ORS 656.340(6).1 Although Frame involved eligibility for vocational assistance, I see no reason to limit the construction of “gainful employment” to that context. The objectives of workers’ compensation are the same in both the vocational assistance and disability benefits areas: to restore the worker to a position as near as possible in pay and status as existed before the injury. A term should be applied consistently in construing a statutory scheme. It is inappropriate to give differing meanings to the term when applying parts of the same law.
The great disparity between claimant’s pre- and post-injury earning capacity compels the result that the telemarketer and room inspector jobs are not gainful employment. They do not bear a reasonable relationship to her previous earnings and, as we explained in Frame, “[t]here is no requirement that a worker who has been offered any job paying something, even minimum wage, is gainfully employable * * 63 Or App at 831. (Emphasis in original.) I am especially concerned with today’s holding because — assuming that there actually is a market for it — the telemarketing job might be used to deny PTD benefits in all cases, because the inference is that almost anyone, regardless of physical disability, can perform it. If that comes to pass, it will be because the majority has effectively eviscerated the term “gainful” from the statute.
Accordingly, I dissent.
In response to Frame, the 1987 Legislature amended ORS 656.340(6) to provide specifically that a worker is eligible for vocational assistance
“(a) * * * if the worker will not he able to return to the previous employment or to any other available and suitable employment with the employer at the time of injury, and the worker has a substantial handicap to employment.
“(b) As used in this subsection:
“(A) a ‘substantial handicap to employment’ exists when the worker, because of the injury, lacks the necessary physical capacities, knowledge, skills and abilities to be employed in suitable employment.
“(B) ‘Suitable employment’ means:
U* * * * *
“(iii) Employment that produces a wage within 20 percent of that currently being paid for employment which was the worker’s regular employment.” (Emphasis supplied.)
See also ORS 656.340(14).