48 Trial Lawyer • Summer 2022 Comp Corner Various court decisions reflected the workers’ compensation system applying this policy. In Rios v. Timber Structures, Inc., 8 Or App 155, 157 (1972), the court indicated the hearing officer had relied on the principle, noting “if a workman who is psychologically unfit receives a compensable injury which aggravates his neuroses, the employer is required to compensate the workman for both his physical and psychological disabilities.” As well, it was acknowledged by the board as noted in Hoffman v. Bumble Bee Seafoods, 15Or App 253, 254-55 (1973).The Court of Appeals described it as “elementary” in D.R. Johnson Lumber Co. v. SAIF, 20 Or App 419, 425 (1975), stating, “It is elementary that under the Workmen’s Compensation Law the employer takes the workman as he finds him.” Other factors There is more going on in Johnson that may have led to the court re-affirming the tenet. This is now the third case involving permanent disability in which the Supreme Court has issued an opinion. This is an area where, despite the first opinion of the court (Schleiss) and despite the second opinion (Caren), the system has continued to apportion (reduce) permanent disability benefits despite the fact the compensable injury was a material contributing cause of the disability. This includes continued appeals by the insurers. It includes some cases issued at hearing and on review. And, it includes the rules promulgated by the director, where apportionment based upon a category of various non-preexisting conditions is still allowed. See OAR 436-0350007, 436-035-0012(10)(c), inter alia. In this third opinion, the court has, yet again, confirmed that the law continBy Julene Quinn OTLA Guardian In Johnson v. SAIF, 369 Or 579, 600-01 (2022), the court stated: “In Barrett I, this cou r t a cknowl - edged the longstanding guideline that an employer takes the worker as he finds him. 300 Or at 328; see also Surratt v. Gunderson Bros., 259 Or 65, 74, 485 P2d 410 (1971) (emphasizing that “the individual workman is taken as the industrial accident finds him with all his apparent defects”); Keefer v. State Indus. Acc. Commission, 171 Or 405, 412, 135 P2d 806 (1943) (“The Oregon Workmen’s Compensation Law, as that of many of the other states prescribes no standard of physical fitness to which the employee must conform, and compensation is not based on any implied warranty of perfect health.”). Although the Legislature significantly overhauled the workers’ compensation statutes following our decision in the Barrett cases, we do not understand those changes to alter that tenet.” The 80-year-old rule “That tenet” has been established for almost 80 years, being acknowledged by the Oregon Supreme Court in 1943. The earliest reference I can locate in Van Natta’s is Mervyn Stockel, 2 Van Natta 167, 168 (1969), with the case stating, “The law requiring the employer to take the workman as he finds him has a continuing effect.” The Worker You Find Issues & Topics for theWorkers’ Compensation Attorney Julene Quinn ues to take the worker as it finds the worker, and that, despite a limited change by the Legislature involving combined conditions, “an injured worker is entitled to compensation for the full measure of their impairment that is caused in material part by the compensable injury.” The court emphasized this by discussing the tenet that employers take workers as they find them. Broader application The tenet, though, is not limited to permanent disability, the issue in Johnson. The question of fault or personal factors of the worker arises often in causation questions or medical care. ORS 656.012(2) reflects the same intent with a “no fault” system as part of the quid pro quo in exchange for constitutionally guaranteed rights to a remedy, providing for quick, guaranteed rights, regardless of fault, of temporary disability, medical services, permanent disability and vocational services, in exchange for later, but larger, jury awards. The Supreme Court has recognized that, while the legislative changes in 1990 and 1995 altered some issues, significant portions of the long-established workers’ compensation law remain untouched here, falling back on the tenet of taking the worker as the employer finds them. Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 503-983-3205 or julene.m.quinn@ gmail.com.
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