ALBANY FROZEN FOODS v. NESS, 24 Or. App. 843 (1976)

547 P.2d 148

ALBANY FROZEN FOODS, Appellant, v. NESS, Respondent.

No. 46106, CA 5560Oregon Court of Appeals.Argued February 24, 1976.
Affirmed in part; reversed in part March 22, 1976.

Appeal from Circuit Court, Linn County, Courtney R. Johns, Judge.

R. Ray Heysell, Medford, argued the cause and filed the brief for appellant.

Donald R. Wilson, Portland, argued the cause for respondent. With him on the brief were Pozzi, Wilson Atchison, Portland.

Before Schwab, Chief Judge, and Foley and Fort, Judges.

Affirmed in part; reversed in part.


Page 844


Page 845


The principal issue in this workmen’s compensation case is whether the claimant, in addition to sustaining a scheduled disability as a result of an industrial accident in April of 1973, also sustained an unscheduled disability. The Workmen’s Compensation Board held that she did not; the referee and the circuit court held that she did. We likewise find that the evidence pre-ponderates, albeit slightly, in favor of claimant on this issue. We agree with and adopt the trial judge’s findings and conclusions, the relevant portions of which are:

“The sole problem then is whether or not the unscheduled award should be reinstated. The carrier and the Board contend there is no medical evidence in the record to support the Hearing Referee’s Opinion.
“On April 26, 1973, Dr. Isgreen diagnosed ‘Low back syndrome’.
“On June 29, 1973, Dr. Pullen reported he had treated claimant five times from March 13, 1973 to April 5, 1973 and her primary complaints were elbow and upper back pain.
“On November 30, 1973 Dr. Marten Johnson, a neurologist, reported a part history of pain in her neck and both shoulders; a present complaint of a deep aching sensation like ‘a muscle spasm’ radiating into the mid-thoracic area with radiation of anasthesias in both shoulders. His impression was ‘Thoracic outlet syndrome’. His examination disclosed that she was tender over the lumbo-dorsal area and over both brachial plexus.
“On February 15, 1974, she returned to Dr. Johnson with the complaint of neck and mid-back pain and muscle spasms in the back of her neck.
“On March 13, 1974 Dr. Gantenbein at the Disability Prevention Division reported a past history of aching of the arm muscles and a simultaneous burning feeling in the upper back, and a present complaint of burning pain and tightness of the muscles in the upper back. His opinion included ‘strain, cervical dorsal spine’.
“Obviously, there is considerable medical evidence of

Page 846

the existence of an unscheduled neck, shoulder and upper back disability. In addition, the Referee observed the claimant and found no reason to question her credibility or motivation. His opinion is entitled to considerable weight and is supported by the evidence, and his order should be reinstated as this Court finds the claimant does have a permanent partial unscheduled disability equal to 10 percent.”

The trial court also ordered the employer to pay an attorney fee to claimant’s attorney. On appeal claimant agrees that this portion of the trial court’s order cannot stand.

Affirmed in part; reversed in part.

Page 847