# Garbutt v. SAIF Corp.

> Oregon Supreme Court · May 22, 1984 · 297 Or. 148

URL: https://www.frixlaw.com/law-library/cases/9619524

## Case

- **Full name:** In the Matter of the Compensation of Norman Garbutt, Claimant. GARBUTT, Petitioner on Review, v. SAIF CORPORATION, Respondent on Review
- **Court:** Oregon Supreme Court
- **Decided:** May 22, 1984
- **Citations:** 297 Or. 148; 681 P.2d 1149; 1984 Ore. LEXIS 1323
- **Precedential status:** Published
- **Opinion:** Dissent by Peterson
- **Judges:** Jones, Peterson
- **Cited by:** 13 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9619524

## Opinion text

PETERSON, C. J.,
dissenting.
Before 1973, ORS 656.271 contained the jurisdictional requirement that when a claim for aggravation was filed it “must be supported by a written opinion from a physician that there are reasonable grounds for the claim.” The requirement of a “written opinion from a physician” as a condition to filing a claim for worsening is to be distinguished from the rule that “where injuries complained of are of such character as to require skilled and professional persons to determine the cause and extent thereof, the question is one of science and must necessarily be determined by testimony of skilled, professional persons.” Uris v. Compensation Department, 247 Or 420, 424 , 427 P2d 753, 755 , 430 P2d 861 (1967). The former rule related to the jurisdiction to hear a claim; the latter rule relates to the sufficiency of proof.
ORS 656.271 was repealed in 1973, Or Laws 1973, ch 620, § 4, and replaced by ORS 656.273, which deleted the requirement that the claim for aggravation be supported by a written opinion from a physician. The Uris proof requirement stated above remains the law in Oregon.
I agree with the majority that the Court of Appeals erred in Oakley’ v. SAIF, 63 Or App 433, 436 , 664 P2d 431, 433 (1983), when it stated that “[a]n aggravation claim based solely on a claimant’s statement that his condition has deteriorated is statutorily insufficient.” The Court of Appeals cited Larson v. Compensation Department, 251 Or 478, 482 , 445 P2d *153 486, 488 (1968), for that proposition. Larson may stand for that proposition, but the 1973 amendment changed the rule.
In the case at bar, the Board reviewed the medical evidence, including the medical reports, and then stated:
“While noting that the medical evidence offered no direct support that claimant’s left shoulder condition was worse at the time of the hearing than at the time it was found to be medically stationary, the Referee nevertheless concluded that it had worsened. The medical evidence.'in favor of this proposition is both scanty and inconclusive. Prior to the hunting accident, claimant’s left shoulder was being treated with rest and heat treatments and was improving to the point where claimant was capable of going elk hunting, riding a horse and apparently using a high-power rifle. By October of 1981, the pain had increased to the point where injections were necessary and an arthrogram was suggested but refused. We do not find a sufficient basis in the record for concluding that claimant’s left shoulder condition had worsened. We do not believe that it is an uncomplicated matter such that lay testimony alone would be sufficient to resolve the issue.
“Claimant argues that the vocational evidence contained in the record strongly supports the conclusion that he is permanently and totally disabled. The vocational evidence does indeed point toward such a conclusion. However, we think it is obvious that the vocational reports were considering claimant’s entire physical disabilities including the non-related psychological condition and the non-compensable hunting injury which, as we have previously pointed out, may not be properly considered. We cannot conclude that the evidence as a whole supports the proposition that prior to the hunting accident, claimant was permanently and totally disabled. We are not even completely convinced that the medical evidence supports a conclusion that, prior to that hunting accident, claimant would have been precluded from his job as a small engine mechanic.” (Emphasis added.)
I do not read the Board’s order as does the majority. I read the Board’s opinion to say that the question of whether the plaintiffs disability was due to a compensable worsening or to a noncompensable hunting accident (a bullet fired from a 30/30 rifle struck claimant in the hip causing partial paralysis in the left leg) was of such character that an expert medical opinion would be required. Such a determination by the Board is permissible under Uris v. Compensation Department, supra.
*154 Because the Court of Appeals likely affirmed the Board for that reason, I would affirm the Board and the Court of Appeals.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9619524. Public record. Not legal advice.