Opinion
WCB 82-06426; CA A35141
On petitioners' reconsideration filed June 13, 1986 Reconsideration allowed, former opinion ( 78 Or. App. 671, 717 P.2d 251) affirmed September 10, 1986
Judicial Review from Workers' Compensation Board.
Jerald P. Keene and Roberts, Reinisch Klor, P.C., Portland, for petition.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
RICHARDSON, P.J.
Petition for reconsideration allowed; affirmed.
United Medical Laboratories and its insurance carrier, Employee Benefits Insurance Company, filed a petition for review of our decision, 78 Or. App. 671, 717 P.2d 251 (1986). We treat it as a petition for reconsideration, ORAP 10.10, allow the petition, modify our opinion and affirm the decision of the Workers' Compensation Board.
In our original decision, we affirmed the Board's order per curiam, citing SAIF v. Casteel, 74 Or. App. 566, 703 P.2d 1039 (1985). After our decision in this case, the Supreme Court vacated our decision in Casteel and remanded that case to the Board for reconsideration. SAIF v. Casteel, 301 Or. 151, 719 P.2d 853 (1986).
In Casteel,
"[c]laimant compensably injured her back and hip. A referee awarded permanent total disability. SAIF requested Board review, and the Board reduced the award to 10 percent unscheduled permanent partial disability. Claimant requested review by this court, and we modified the Board's order and granted claimant an award of 50 percent unscheduled permanent partial disability. * * *" 74 Or App at 568.
We held that by virtue of ORS 656.313, SAIF's payments preceding the ultimate award of 50 percent permanent partial disability benefits did not count toward that award. The Supreme Court concluded that we had misperceived the facts of the case and that therefore, the issue we posed and decided was not "cleanly" presented by the facts. The court concluded that our decision should be vacated because it was arguably an incorrect precedent.
We adhere to our reasoning in Casteel, which was based on our perception of the facts, however incorrect that perception may have been, and we use that reasoning to decide the identical issue in this case.
Petition for reconsideration allowed; affirmed.