Opinion
WCB 82-10387, 85-14031; CA A44639
Argued and submitted May 2, 1988
Reversed and remanded with instructions July 6, 1988 Reconsideration denied September 23, 1988 Petition for review denied October 18, 1988 ( 307 Or. 77)
Judicial Review from Workers' Compensation Board.
Jerald P. Keene, Portland, argued the cause for petitioner. With him on the brief was Roberts, Reinisch Klor, P.C., Portland.
Nelson R. Hall, Portland, argued the cause for respondent. With him on the brief was Pozzi, Wilson, Atchison, O'Leary Conboy, Portland.
Before Warren, Presiding Judge, and Rossman, Judge, and Riggs, Judge pro tempore.
WARREN, P.J.
Reversed and remanded with instructions to reinstate determination orders.
In this workers' compensation case, both the referee and the Board awarded benefits for permanent total disability. The record shows that claimant's attorney advised him to refuse vocational assistance. We review this case de novo to determine whether that refusal precludes an award of benefits in view of the requirement that a claimant who seeks benefits for permanent total disability must establish that he is willing to seek regular gainful employment and has made reasonable efforts to do so. ORS 656.206 (3); Willamette Poultry Co. v. Wilson, 60 Or. App. 755, 654 P.2d 1154 (1982), rev den 294 Or. 569 (1983); Waler v. SAIF, 42 Or. App. 133, 600 P.2d 442 (1979). We have, on occasion, not applied the "must seek work" requirement when the record shows that the effort would be futile. Home Ins. Co. v. Hall, 60 Or. App. 750, 654 P.2d 1167 (1982), rev den 294 Or. 536 (1983).
Claimant was almost 63 years of age at the time of the hearing. He has worked only in the logging industry for the last 40 years. He is now limited by his physical disabilities to light or sedentary work. He has not worked or looked for work since a compensable injury in March, 1982.
Claimant's attorney advised him to refuse to cooperate with employer's vocational assistance provider and instead sought the consultation of a private vocational expert. The expert conducted tests, evaluated claimant's ability and testified that, considering claimant's age, limited experience and abilities, vocational rehabilitation was inappropriate and would not have returned claimant to "gainful full-time employment." The expert was mistaken that claimant must be able to return to full-time employment. If he is able to do regular part-time work, he is not permanently and totally disabled. In fact, the expert testified that claimant may have the ability to engage in part-time employment in some 60 job categories. We find, however, that those jobs are not available to him without vocational assistance, which he has refused, on his attorney's advice.
A finding of futility is reserved for the extreme situation where, for example, the record shows that the individual is physically totally disabled or is not capable of retraining. Considering claimant's physical limitations, age and other factors, he may be totally disabled. However, in view of the fact that he is not totally disabled from a physical standpoint, it is impossible to know whether it would be futile for him to seek work without first determining, in a rehabilitation setting, what his abilities are. In view of his failure to cooperate with rehabilitation counselors and the scant record concerning the extent of his disability if it is not permanent and total, we reverse the Board and reinstate the determination orders awarding claimant 30 percent unscheduled disability for an injury to his neck and 40 percent scheduled disability for loss of the left leg.
Reversed and remanded with instructions to reinstate the determination orders.