Surratt v. Gunderson Bros. Engineering Corp.

McALLISTEE, J.,

dissenting.

I dissent from the majority opinion insofar as it adopts the assumption in Ryf v. Hoffman Construction Co., 254 Or 624 , 459 P2d 991 (1969) that decreased earning capacity is the major factor in the evaluation of permanent partial disability caused by unscheduled injury. Although the majority opinion in Byf did not acknowledge that this approach was a departure from that previously employed in disability evaluation, the dissent pointed out that neither the statutory history of the compensation laws nor prior decisions of this court offered support for measuring disability in these cases in terms of decreased earning capacity. Except for isolated dictum in Lindeman v. State Indus. Acc. Comm., 183 Or 245, 250 , 192 P2d 732 (1948) it had been assumed at least since 1940 that the evaluation of permanent partial disability was based solely on physical impairment. In Kajundzich v. State Ind. Acc. Com., 164 Or 510, 512 , 102 P2d 924 (1940) the court said:

“* ° * The workman, the commission and the court are bound by the statute fixing the amount of compensation for specific injuries: [citations omitted]. Furthermore, the statute applies to all workmen alike. The violinist who loses a finger re *84 ceives the same compensation under the workmen’s compensation act as the ditch digger who loses his fingers in the course of his employment, even though such injury differs greatly with individuals as to the impairment of ability to earn a livelihood.”

The physical impairment approach was reaffirmed in Jones v. Compensation Department, 250 Or 177 , 441 P2d 242 (1968).

Both Kajundzich and Jones involved injuries to scheduled parts of the body. However, until Byf we had never indicated that permanent partial disabilities resulting from unscheduled injuries were to be measured on any different basis than physical or functional impairment. Ten years after Kajimdzich it appears to have been assumed that the functional loss test applied to all cases of permanent partial disability. Evans, Workmen’s Compensation in Oregon, 31 Or L Rev 28, 36 (1951). ① Although I concurred in the Byf opinion, I now think that it was based on an erroneous assumption and that it is a mistake to deliberately adopt and perpetuate that error. Throughout the history of our compensation statutes, there has been no indication of a legislative intent to adopt an independent measure of disability in unscheduled permanent partial disability eases; the statute governing this case indicates the opposite intent. At the time of plaintiff’s injury, ORS 656.214 (4) provided that the disability was to be:

# * computed by determining the disabling effect of such injury as compared to the loss of any member named in the schedule in this section, * * #

*85 The above provision clearly relates the measurement o£ the unscheduled disability to those for which the degree of disability had been established by statutory schedule.

Whatever the authorities have to say about the proper theoretical basis for compensation awards, we must look first to our own statutes. Other jurisdictions have found in their statutes a legislative intent to measure disabilities according to loss of physical function rather than decreased earning capacity. Graf v. National Steel Products Co., 225 Mo App 702, 38 SW2d 518 (1931); Page v. Department of Labor & Industries, 52 Wash 2d 706, 328 P2d 663 (1958). The theory of the Kajundsich and Jones cases is not unique.

If the only basis for increasing the award is the application of the earning capacity test, as it appears from the majority opinion, then I think the award approved by the hearing officer and the Board should stand. I would affirm the decision of the Court of Appeals.

The author of this article, which was based on a Continuing Legal Education address delivered at the 1950 annual meeting of the Oregon State Bar, had served as an Assistant Attorney General assigned to the State Industrial Accident Commission.