The opinion
THORNTON, J.,
concurring in part; dissenting in part.
I concur with the majority’s analysis and decision as to the first petition, namely, the issue of the award of attorney fees in this case.
*868 With respect to the second petition, which deals with determining the effective date of permanent and total disability, I disagree.
The entire purpose of our reconsidering this issue and requesting supplemental briefs on this point was to establish an all-inclusive rule for determining the effective date of modifications awarding permanent and total disability. The rule proposed in the majority opinion is acceptable as far as it goes, but it does not go far enough. Moreover, as explained below, the proposed rule is mistakenly applied by the majority in the case at bar. While I agree with the majority that the rule in Wilke v. SAIF, 49 Or App 427 , 619 P2d 950 (1980) should be adhered to where applicable, this rule does not cover the following fact situations 1) where there is no evidence, or insufficient evidence, in the record establishing a specific date of claimant’s permanent and total disability; and 2) where new evidence has been considered on review by the Workers’ Compensation Board or court following the decision by the hearing officer.
The majority opinion says:
"The determination that an injured worker is permanently and totally disabled is a legal conclusion of which medical testimony is only one part. Other factors including psychological disability, age, training, aptitude, adaptability to nonphysical labor, mental capacity, conditions of the labor market and motivation must also be examined. In Wilke both medical and psychological elements were involved. Claimant is entitled to offer evidence and testimony as to his disability up to and including the time of the hearing to prove his case. It is not until the hearing that all the elements of the case have been considered and claimant’s disability is finally determined and adjudged.”
After expounding the above sound and salutary propositions of workers’ compensation law (with which I wholeheartedly agree), the majority opinion then proceeds to ignore them in deciding the point in issue.
As pointed out in Wilson v. Weyerhaeuser, 30 Or App 403, 409 , 567 P2d 567 (1977):
"There are two types of permanent total disability: (1) that arising entirely from medical or physical incapacity— such cases are easier to determine and seldom find their *869 way to us on appeal — and (2) that arising from physical conditions of less than total incapacity plus nonmedical conditions, which together result in permanent total disability. Typically, such nonmedical evidence relates to age, training, aptitude, adaptability to nonphysical labor, mental capacity and emotional condition, as well as the condition of the labor market. * * *”
In my view, the proposal in the majority opinion is defective and incomplete in failing to deal with the two fact situations described above.
In the case at bar, the majority declares:
"Applying the Wilke rule in this matter, we find claimant to have established that she was permanently and totally disabled as of October 3, 1979. That is the date of her followup examination at Woodland Park Hospital in the Northwest Pain Center Program. * * *”
I disagree with the majority’s conclusion on the facts as well as the law. A reading of this court’s original opinion on the merits in this case ( 50 Or App 533 , 623 P2d 1118 (1981) shows that this court there determined that claimant was permanently and totally disabled as a result of her physical condition plus nonmedical elements of age, training, aptitude, adaptability to non-physical labor, mental capacity, emotional condition and conditions of the labor market. 50 Or App at 537 . Contrary to the assertion in the majority opinion, no doctor at any time ever stated that claimant was permanently and totally disabled.
For the foregoing reasons it is impossible either from the medical reports or other evidence in this case to fix a date when it can be said that the evidence established that claimant was permanently and totally disabled. Only pure speculation can be used by a court to set a date on which claimant became permanently and totally disabled.
The majority’s position that the Wilke rule can be applied in the instant situation is totally untenable.
My review of this matter persuades me that the rule should be as follows:
When an award has been modified to award permanent and total disability, the effective date is to be determined as follows:
*870 1) Where the injured worker has proven that he was permanently and totally disabled as of a certain date, then that is the effective date. Wilke v. SAIF, supra.
2) Where there is no evidence, or insufficient evidence, in the record establishing a specific date of claimant’s permanent and total disability, then the effective date of that modification should be the date of the first hearing at which the latest evidence bearing on that issue was offered, and upon which a correct determination of that disability could have been made, by the referee, Workers’ Compensation Board or court.
3) In those instances where new evidence has been considered on review by the Workers’ Compensation Board or court following the decision by the referee, and the previous award has been modified, then the date of the Board or court’s hearing shall be deemed the effective date of disability.