BARRETT v. D H DRYWALL

JONES, J.

In Barrett v. D H Drywall, 300 Or. 325, 709 P.2d 1083 (1985), we reversed a decision (on reconsideration) by the Court of Appeals, 73 Or. App. 184, 698 P.2d 498 (1985). The employer and its insurer have filed a particularly vigorous and vehement petition for reconsideration. We allowed the Association of Workers' Compensation Defense Attorneys to file an amicus curiae brief in support of the petition for reconsideration, and that brief "strongly" urges us to disavow our decision and change our minds as did the Court of Appeals.

The petition for reconsideration and the Defense Attorneys' brief have convinced us not that our decision was wrong, but that it is misunderstood by petitioner and by amicus. We propose, therefore, only to restate the substance of our decision.

ORS 656.214 (5) provides that the criterion for a rating of disability for permanent partial disability "shall be the permanent loss of earning capacity due to the compensable injury." (Emphasis added.) This worker had a preexisting disease, osteoarthritis, in the area of his body that was injured in the accident with which we are here concerned. We have recognized that the Court of Appeals found as a fact that the disease was not worsened by the injury, 300 Or at 329 n 3, and we accepted that finding. Our decision does not require any award of compensation for that disease or for any disability that may have existed by reason thereof before the present compensable injury.

Apparently, a disease may produce symptoms although it has not worsened. See Weller v. Union Carbide, 288 Or. 27, 602 P.2d 259 (1979). If, therefore, the accident described in Barrett v. D H Drywall, 300 Or at 327 and 330, caused that disease to produce symptoms where none existed immediately prior to the accident, and those symptoms produced loss of earning capacity, then that loss of earning capacity is "due to" the compensable injury, and the statute requires an award of compensation therefor.