evidence of pain and claimant's occupational capabilities supported finding that claimant was totally permanently disabled
How later courts described this case
- evidence of pain and claimant's occupational capabilities supported finding that claimant was totally permanently disabled
- subjective complaints of pain must be considered in determining disability
- “use of the guidelines is not a substitute for a ‘fair assessment’ of the percentage of disability”
Written by the judges who cited it.
The opinion
CARSON, J.,
concurring.
I write separately for the purpose of setting forth what I consider to be a clearer statement of the role of pain in workers’ compensation cases involving unscheduled, permanent partial disability, although not in contradiction of the majority opinion.
Two fundamental concepts of the law of workers’ compensation control the role of pain in this case. The first concept is that pain, in and of itself, is not compensable in workers’ compensation cases. Walker v. Compensation Department, 248 Or 195, 196 , 432 P2d 1018 (1967); Wilson v. State Ind. Acc. Comm., 189 Or 114, 124 , 219 P2d 138 (1950); Lindeman v. State Ind. Acc. Comm., 183 Or 245, 250 , 192 P2d 732 (1948); 2A Larson, Workmen’s Compensation Law § 65.51(c). The second concept is that, in unscheduled, permanent partial disability cases, the disability for which compensation is awarded is the permanent loss of earning capacity due to the compensable injury. ORS 656.214(5). Thus, as noted by the majority, it is only the effect of pain that may result in compensation.
From the statutes, caselaw, and literature, I perceive three levels of pain in cases of unscheduled, permanent partial disability: Pain, pain that impairs, and pain that results in compensable disability.
1. Pain.
This first level in the hierarchy of pain frequently is referred to as “pain” or “pain and suffering” *514 and is a generic reference to a sensation of hurting most often found in the usual tort case. It is an injury for which damages may be awarded, both for past and for future pain. As noted above, this level does not result in any compensation in workers’ compensation cases.
2. Pain that Impairs.
The next level in the examination of pain is pain that impairs function of the body or its parts. It should be pointed out that the impairment may be a contributing factor to, or an indication of, disability, but not necessarily so. For instance, it is conceivable that one would have pain which produces a minor impairment or loss of function that has no effect upon one’s earning capacity. No compensation may be awarded for this level of pain, absent impairment of earning capacity.
3. Pain that Results in Compensable Disability.
It is this level of pain for which compensation may be awarded. Thus, pain that results in a permanent loss in one’s ability to obtain and hold gainful employment in the broad field of general occupations (earning capacity) is disabling pain and compensation may be awarded.
It can be seen that pain is compensable not for what it is (pain), or for what it causes (impairment), but for the effect it has on earning capacity. Thus, using a labeling adjective such as “disabling” in describing pain at any other than the third level blurs the analysis. In fact, it short-circuits it.
Another impediment to the clear application of pain in the workers’ compensation context is the legislatively-chosen verb “consider” (or “take into consideration”). It is a word of varying meanings. 1 Thus, with the wide sweep in meaning from “examine” or “look at” to “calculate,” the *515 judicial move to a mandatory requirement (“must”) from a discretionary requirement (“may”), as done in the majority opinion, accomplishes little, particularly, if “consider” merely means “to look at.” But all of this is irrelevant if the approach spelled out above were followed. In unscheduled, permanent partial disability cases, I would prefer a rule that directs that pain always would be “considered” by the factfinder but only if the factfinder determines that there is pain and that pain causes impairment and that impairment effects a permanent loss of earning capacity, would there be compensation.
Webster’s New International Dictionary, 2nd Edition (1934), listed, in part, the following definitions for “consider”:
“Transitive: 1. To look at attentively; to inspect; to examine.
“2. To fix the mind on; hence, to think on with care; to ponder; to study; to meditate on; also, to'bear in mind.
“3. To estimate; calculate. * * *
“Intransitive: 1. To look attentively. * * * to reflect; to deliberate. * * *”