# Ryf v. Hoffman Construction Company > Oregon Supreme Court · October 22, 1969 · 254 Or. 624 URL: https://www.frixlaw.com/law-library/cases/9792357 ## Case - **Full name:** RYF, Respondent, v. HOFFMAN CONSTRUCTION COMPANY Et Al., Appellants - **Court:** Oregon Supreme Court - **Decided:** October 22, 1969 - **Citations:** 254 Or. 624; 459 P.2d 991; 1969 Ore. LEXIS 582 - **Precedential status:** Published - **Opinion:** Dissent by Sloan - **Judges:** O'Connell, Sloan, Goodwin - **Cited by:** 23 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/9792357 ## Opinion text SLOAN, J., dissenting. Both the hearing officer and the majority place undue emphasis on plaintiff’s immediate loss of earnings. It is doubtful to me, for the reasons that follow, that our statutes contemplate the use of wage loss as a basis for determining the extent of disability. The quotations in the majority opinion reflect the lack of reliability in the use of such a test which has probably been why the legislature has not adopted a loss of wage test in any prior or present statute. As stated by Evans, Workmen’s Compensation in Oregon, 1951, 31 Or L Rev 28, 36: “* * . * The Oregon act differs from most other compensation acts in that the amount payable under the act for such a disability bears no direct relation to the former earning power, or the diminished earning power, of the injured workman. The amount of compensation paid is directly pro *636 portional to the functional loss the workman has sustained. * * Before the present decision, permanent partial disability has always been measured entirely by loss of bodily function. It has been physical, not monetary, evaluation. Evidence of earnings, either before or after injury was irrelevant. The trier of the fact decided disability without any reference to earnings. Cain v. State Ind. Acc. Comm., 1934, 149 Or 29 , 37 P2d 353 , 96 ALR 1072 . An examination of our statutes, from the inception of the workmen’s compensation act, sustains the quotation from Evans, and explains why all of the prior cases have tested disability by loss of bodily functions. The Oregon basis for measuring permanent partial disability has been unique. In a comparative study by Somers, Workmen’s Compensation, 1954, Oregon is revealed to be one of the few states that does not, in some way, equate such disability to weekly wages. Starting with ch 112, Oregon Laws 1913, permanent partial disability for scheduled injuries was based upon periods of time measured in months. Cain v. Ind. Acc. Comm., supra. The 1913 Act provided that non-scheduled disabilities were determined by the “relation to the periods stated in this clause as the disabilities bear to those produced by the injuries named in this schedule.” A 1935 amendment, changed the monthly-time method of computing disability to one of degrees. Oregon Laws, 1935, ch 46. The 1935 amendment also provided that the degrees of disability for a non-scheduled injury “shall be computed by determining the disabling effect of such injury as compared with any disability named in the above *637 schedule.” That test for computing permanent partial disability has remained unchanged until a 1967 amendment, Oregon Laws 1967, ch 529, which now provides that the measurement of disability shall be “determined by the extent of the disability compared to the workman before such injury and without such disability.” Prior to 1965, juries were told to measure permanent partial disability in terms of the percentage of loss of the functions of a scheduled injury. As above stated, the amount of a workman’s earnings was not relevant at any level of disability determination. Cain v. State Ind. Acc. Comm., supra, at 34; 2 Willamette L J 8 (1962). This appears to have been a relatively satisfactory test as evidenced by its long legislative approval. It is apparent from an examination of the Act that the legislature has been conscious of a wage differential test. In respect to temporary partial disability OPS 656.212 provides: “When the disability is or becomes partial only and is temporary in character, the workman shall receive for a period not exceeding two years that proportion of the payments provided for temporary total disability which his loss of earning power at any kind of work bears to his earning power existing at the time of the occurrence of the injury.” With the exception of a minor change in wording made by ch 672 Oregon Laws 1953, this section has remained unchanged since 1933, and was continued in the 1965 revision. In the struggle that preceded and continued during the 1965 revision it is difficult to believe that this distinction went unnoticed. It can be inferred, therefore, that the legislative use of a non- *638 wage related measure*:of'! disability in the permanent, partial disability cases: vims a deliberate one. It is true that Lindeman v. State Indus. Acc. Comm., 1948, 183 Or 245, 250 , 192 P2d 732 , citing Rhode Island and Massachusetts cases, the court did state that “the loss' of capacity to earn'isi.the basis upon which compensation should be based.” The statement was immaterial- to the decisionvifn-.the case so no explanation was made of how “capacity to earn” was to be measured. There has not been any further illumination.. Even so, the loss of-capacity to earn is certainly not the equivalent of loss- of wages. By contrast, in Kajundzich v. State Ind. Acc. Com., 1940, 164 Or 510 at 512 , 102 P2d 924 , Mr. Justice Belt, for the court, said that “Eurthermore, -the statute- applies to all workmen alike. The violinist who loses a finger receives 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.” We are, however, informed by § 11.44, Workmen’s Compensation Coverage in Oregon, an Oracle publication, 1968, that “hearing officers under the new Act are interpreting the Lindeman and Kajundzich cases to mean that in scheduled injury cases a man’s earning capacity before the injury is not considered in arriving at the disability evaluation, whereas in unscheduled injury cases the workman’s earning capacity, if impaired, is considered.” What change was made in the “new Act” to warrant this departure from the former loss of bodily function test is not disclosed. There is nothing in the amendments to the relevant sections of the' former Act which justify the change. *639 If there is justification for adopting the distinction made by the hearing officers between scheduled and non-scheduled injuries in arriving at the extent of disability, there should, at least, be some explanation as to why the “new Act” requires the change. It should also be explained why the new formula provides a more accurate and uniform measurement of disability than the long standing test previously used. The answer is not to be found in the statutes and an unexplained assumption is not enough. The use of the majority’s formula in this ease demonstrates that it can be unfair. Its application here allows plaintiff 30' percent of the loss of an arm just because this is equal to the percentage equal his present loss in wages and only an additional 10 percent for the other factors. The failure of the use of immediate wage has to provide a fair and accurate measure of disability is reflected in this case. It seems apparent that plaintiff has suffered disability of more than a total of 40 percent of the loss of use of an arm. Plaintiff’s ability to work has been reduced below the level of a man with one good arm and a GO percent use of the other. Yet by comparing wages, this is the result reached. The evidence is undisputed that plaintiff had been a capable, conscientious craftsman in the construction industry; the best use of his abilities. Now he is deprived of the opportunity to compete for the high wages paid such a craftsman. It is undisputed that his condition will degenerate and he will be progressively unable to work in any capacity that requires lifting anything of consequential weight. This will substantially impair his ability to compete in any job market. On his shortened leg he must now wear a *640 lift. The primary reliance on the wage differential, a differential that is obviously presently reduced by plaintiff’s “stoical” determination to work, deprives plaintiff of a fair measurement of his disability. Hoffmeister v. State I. A. Com., 1945, 176 Or 216, 222 , 156 P2d 834 . Plaintiff’s disability should be measured by his total physical disabilities. So measured they would at least equal 50 percent of an arm. Goodwin, J., joins in this dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792357. Public record. Not legal advice.