The opinion
FOLEY, J.,
dissenting.
The sole issue in this appeal by claimant is the extent of his disability. The hearing referee and Workmen’s Compensation Board found claimant to be permanently and totally disabled; the circuit court reversed, awarding claimant 50 percent permanent partial disability based on its finding that claimant had failed to sustain his burden of proving total disability or that he comes within the odd-lot category.
I would reverse and adopt the following from the referee’s opinion and order, in addition to that quoted by the majority:
“Claimant was born in Arkansas and attended school through the third grade. He has no further education or special training. He started working at age 13 helping on his father’s farm. His entire work history has been one of heavy duty labor, principally farm work, including chopping and pick *206 ing cotton, baling hay, and loading trucks. * * * The farm jobs on which he worked often extended to 12 or 13 hour days and to six day weeks. # # # [He worked] for the employer here loading and unloading trucks and running a cleaner for blue grass seed * * * for approximately one month before his industrial injury.
“* * * He testified to being able to stand on his feet for only about 10 minutes with the leg becoming weak and numb all the way down to the foot, that he is in misery after sitting for 10 or 15 minutes, and that he now walks with a kind of half step and is unable to walk more than a couple of blocks. The intensity of the pain restricts his ability to move to the point that sometimes he has to lift bis leg with his hands. He testified that in lifting an object as light as a small breakfast room chair he feels like he is pulling apart in the low back.
# #
“* * * I am persuaded that claimant is in fact a truly pain-ridden individual and while he has expressed different reasons for refusing a myelogram (including saying at one stage he didn’t understand it whereas his testimony indicated that he did in fact understand it) I do not construe this as showing lack of motivation or lack of credibility as to the reality of pain. I infer that there is a constellation of reasons for claimant’s resistance including fear, naivete, and the overwhelming problem he visualizes for his wife if he should lose his present capacity to function even temporarily, much less permanently, since his wife is disabled by rheumatoid arthritis to the point of being bedridden a large part of the time and there are no other family members.
“* * # [C]laimant’s age of 49, his illiteracy, his work history limited to heavy duty labor and his probable unretrainability * * * suggest the very real possibility that even if Mr. Snell took a myelo *207 gram, and if a herniated disc were found, and there were successful surgical treatment he might nonetheless he unable to return to his regular heavy duty employment if he had the degree of physical limitation which can be projected as a normal residue to a laminectomy.
“Another factor which reinforces the reasonableness of claimant’s refusal of myelography and possible surgery is the rather tentative diagnosis concerning the presence of a herniated disc made by some of the specialists who have examined or treated him. # *
# * # *
“As to claimant’s motivation to work I consider his stable work record as being indicative that he has good motivation; the fact that he remained on the job several days after the injury and has made several attempts to secure light work is likewise indicative of good motivation. Dr. Melgard commented on a couple of occasions that claimant wanted to go to work * * * and Clinical Psychologist Hickman commented, ‘It is likely, however, that if an opportunity developed he would make a sincere effort to return to work’ * * *.
ÍÍ# # * sfc J?
I agree with the referee’s conclusion, affirmed by the Board, that claimant’s inability to return to heavy labor, his motivation, his age, education, intellectual capacity (full scale I.Q. of 57), and unretrainability place him in the odd-lot category. Deaton v. SAIF, 13 Or App 298 , 509 P2d 1215 (1973). While it is true that the medical testimony as to the extent of claimant’s disability is not as strong as in some cases of permanent total disability, there was considerable lay testimony of his capabilities before and his incapacity after his injury. I consider this court should give careful consideration to the referee’s findings, particularly where credibility is involved. The referee found:
“Prior to the industrial injury claimant had *208 no problem which minimized his ability to perform heavy duty employment. Lay witnesses who appeared in his behalf testified that prior to his injury he was a very energetic, hard working and responsible workman and that subsequent to Ms injury he has been incapable of performing any type of labor. Claimant’s own testimony, which I believe to be true, is that by reason of severe bach pain and pain in the leg he is unable to perform any substantial amount of worh. # * *” (Emphasis supplied.)
I also' think tMs court should give favorable consideration to the experience and expertise, in a ease such as this, of the Workmen’s Compensation Board which •found him to be permanently and totally disabled. Since the Fund has failed to show that suitable employment is available for claimant, Deaton v. SAIF, supra, he is entitled to be rated as permanently and totally disabled. I would therefore reverse the circuit court’s order.