RASMUSSEN v. SAIF, 79 Or. App. 527 (1986)

719 P.2d 80

In the Matter of the Compensation of the beneficiary of Paul D. Rasmussen (Deceased), Claimant. RASMUSSEN, Petitioner, v. SAIF CORPORATION et al, Respondents.

83-09373; CA A35498Oregon Court of Appeals.Argued and submitted December 6, 1985.
Reversed and remanded May 21, 1986.

Judicial Review from Workers’ Compensation Board.

James L. Edmunson, Eugene, argued the cause for petitioner. With him on the brief were Evohl F. Malagon and Malagon
Associates, Eugene.

Darrell E. Bewley, Assistant Attorney General, Salem, argued the cause for respondents. On the brief were Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Donna Parton Garaventa, Assistant Attorney General, Salem.

Before Buttler, Presiding Judge, and Warren and Rossman, Judges.

PER CURIAM

Reversed and remanded.

Page 528

PER CURIAM

Claimant, the deceased worker’s beneficiary, seeks a determination that, at the time of his death, the worker was permanently and totally disabled as a result of his employment. Both the Board and the referee awarded 75 percent scheduled permanent partial disability.

At the age of 64, the worker, a welder at the same company for 31 years, suffered a compensable burn on his foot, resulting in a chronic disability. When he limited his activities, his foot would heal, but every time he attempted to return to work an ulcer would develop. Finally, unable to work, he retired. Doctors later determined that the worker had cancer, unrelated to his foot or to his employment, and that disease ultimately caused his death. SAIF asserts that the worker did not become permanently and totally disabled until after his cancer became symptomatic.

The record indicates that the worker was not able to return to his employment as a welder. Additionally, because of his age, limited experience and physical problems, his doctor and a vocational counselor were of the opinion that he was not trainable for any other job. The doctor testified, without contradiction, that the worker was permanently and totally disabled on November 15, 1982, before the cancer became symptomatic. We agree.

Reversed and remanded.

Page 529