specially concurring.
I concur in the result reached by the majority but disagree with the approach.
As I read the applicable statutes, the result reached by the Labor Commissioner must be sustained unless "unlawful in substance or procedure,” or not based on "substantial evidence in the whole record.” ORS 183.482(8) (a) and (d). In this case, although the point is difficult because the findings are framed in the negative, I would hold that several key findings are not supported by substantial evidence.
The majority interprets ORS 659.400(2) as provid*753ing that "an employer may refuse to hire an applicant with such a 'handicap’ where there is a reasonable medical possibility that the applicant might * * * be unable to perform the work or could experience injury as a result of attempting to perform it” and that "where an employer requires a job applicant to undergo a medical examination by a licensed physician, and the physician renders a reasonable and good-faith opinion that the applicant’s condition is not compatible with the projected employment, the employer should not be held in violation of the Act * *
The Act delegates enforcement and adjudicatory functions to the Commissioner of the Bureau of Labor. ORS 659.435. It follows that the Commissioner determines whether and in what way "it can be shown that the particular handicap prevents the performance of the work involved,” ORS 659.425(1), and whether or not the handicap is "unrelated to a person’s ability to perform the duties of a particular job,” ORS 659.400(2).
The Labor Commissioner viewed the determinative issue in this case to be
"* * * whether complainant’s physical condition at the time of application presented only a possible risk of reinjury, and did thus afford a reasonable expectation of continuous availability; or whether it presented a high probability of incapacitation while performing the ordinary tasks comprising the job in question, and could thus be deemed to prevent its performance.”
In framing the issue in this manner, the Commissioner has issued an interpretative rule in an adjudicative context, 1 K. Davis, Administrative Law 298 to 324, §§ 5.03 to 5.06 (1958).1 While the rule is entitled to weight in construing the statute, I agree that it is wrong.
*754It seems to me that the determinative issue is simpler: Is the disability unrelated to the person’s ability to perform the duties of the particular job? ORS 659.400(2). While I recognize that this inquiry is made more difficult when the particular disability is a heart disorder which poses the risk of a sudden incapacity and not a continuing, definable limitation, I do not think this need change the inquiry to "reasonable medical possibility,” "high probability of incapacitation” or "substantial risk.” In this case it was demonstrated that the disability was related to the claimant’s ability to perform the duties of the particular job and the following findings were not supported by substantial evidence: That complainant suffered no recurrence of heart trouble subsequent to his heart attack in 1968; that the work of a heavy appliance salesman is not strenuous; that the employer’s physician did not have a thorough knowledge of the requirements of the job of appliance salesman; and that employer’s physician did not have adequate data to accurately define applicant’s physical limitations.
It follows that the claimant was not physically handicapped within the meaning of ORS 659.400(2).
Lastly, it seems to me that we cannot "hold as a matter of law Dr. Battalia’s diagnosis that complainant’s heart condition was incompatible with the work of a heavy appliance salesman was reasonable” without reference to the Commissioner’s findings. Unless this court finds that the Commissioner’s findings are not supported by substantial evidence, those findings are conclusive and binding on this court and stand approved. ORS 183.482(8)(d). Our decision cannot operate in a factual vacuum. It must of necessity be based on specific facts. Therefore it is my position that we must specifically point out in our decision that the Commissioner’s key and dispositive findings of fact are not supported by substantial evidence. If, as the Commissioner found, Dr. Battalia "did not have a thorough knowledge of the requirements of the job for which complainant applied” and "did not have ade*755quate data to accurately define complainant’s physical limitations” and the complainant "suffered no recurrence of heart trouble subsequent to his attack in 1968” and the work "did not constitute strenuous physical exertion,” then how is it possible to conclude as a matter of law that Dr. Battalia’s "diagnosis” was reasonable?
See also, ORS 183.355(5); Marbet v. Portland Gen. Elect., 277 Or 447, 561 P2d 154 (1977); Springfield Ed. Assn v. Sch. Dist., 24 Or App 75, 547 P2d 647, modified 25 Or App 407, 549 P2d 1141, Sup Ct review denied (1976).