
FILED:  March 16, 2000
IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Compensation ofRoland A. Walker, Claimant.
SAIF CORPORATION,Insurer,and GOLD CREEK CENTER, INC.,Employer,


Respondents on Review,


v.
ROLAND A. WALKER,


Petitioner on Review.


(WCB 93-07081; CA A89100; SC S44116)
On review from the Court of Appeals.*
Argued and submitted January 7, 1998.
Robert Wollheim, of Welch, Bruun, Green & Wollheim,
Portland, argued the cause for petitioner on review.  With him on
the petition and brief on the merits was W. Todd Westmoreland,
Tillamook.
David L. Runner, SAIF Corporation, Salem, argued the cause
and filed the brief on the merits for respondents on review.  On
the response to the petition for review was Julene M. Quinn, SAIF
Corporation, Salem.  
James L. Edmunson and G. Duff Bloom, of Cole, Cary & Wing,
P.C., Eugene, filed a brief on behalf of amici curiae Oregon
Trial Lawyers Association and Oregon Workers' Compensation
Attorneys.
Before Carson, Chief Justice, and Gillette, Van Hoomissen,
and Durham, Justices.**
CARSON, C.J.
The decision of the Court of Appeals is affirmed.  The order
of the Workers' Compensation Board is reversed, and the case is
remanded to the Workers' Compensation Board for further
proceedings.
*Judicial review from the Workers' Compensation Board.
 145 Or App 294, 930 P2d 230 (1996).
**Fadeley, J., retired January 31, 1998, and did not
participate in the consideration or decision of this case;
Graber, J., resigned March 31, 1998, and did not participate in
this decision; Kulongoski, Leeson, and Riggs, JJ., did not
participate in the consideration or decision of this case.
CARSON, C.J.
In this workers' compensation case, we must interpret
the wording of ORS 656.273(1) (1995), (1) which sets out the
requirements for establishing a worsened condition for the
purpose of filing an aggravation claim.  The Court of Appeals
concluded that, under that statute, a worker must prove a
"pathological" worsening of the underlying condition itself,
rather than only a worsening of symptoms.  SAIF v. Walker, 145 Or
App 294, 305, 930 P2d 230 (1996).  For the reasons that follow,
we conclude that ORS 656.273(1) (1995) requires proof of a
worsened condition; proof of a worsening of symptoms arising from
the underlying condition, by itself, is insufficient.  We also
conclude, however, that evidence of a symptomatic worsening may
support a physician's conclusion that the underlying compensable
condition itself has worsened.  We affirm the decision of the
Court of Appeals and remand the case to the Workers' Compensation
Board (the Board) for further proceedings.
The relevant facts, taken from the Court of Appeals'
opinion and the record, are as follows.  Claimant, a timber
faller, injured his lower back and left leg on the job in 1991. 
Claimant was diagnosed by Dr. Buza, his treating physician, as
having an "L5-S1 herniated disc."  Claimant filed a claim for
compensation.  His injury was deemed compensable, and SAIF
Corporation (SAIF), his employer's insurer, paid the claim.
In May 1992, Buza declared claimant medically
stationary and released him to regular work, beginning in June
1992, without restriction.  At that time, claimant's work
required heavy lifting of up to 100 pounds.  Buza's closing
report concluded that claimant's loss of function was minimal,
although claimant continued to have some pain in his lower back
and left leg.  SAIF awarded claimant 12 percent permanent partial
disability (PPD) and closed the claim.
Claimant requested reconsideration of the closure.  In
February 1993, he was examined by a medical arbiter, Dr. Burr. 
Burr concluded that claimant had a chronic and permanent medical
condition arising from his accepted injury, and that he was
capable of "medium work occasionally, light to medium work
constantly, without repeated crouching, or bending."  Based upon
that report, SAIF increased claimant's PPD award to 16 percent.
Also in February 1993, claimant experienced increased
pain while working and returned to Buza for treatment.  At Buza's
suggestion, claimant underwent an MRI scan, which revealed
evidence of scar tissue but no residual or recurrent disc
herniation.  Buza referred claimant to a rehabilitation center to
evaluate his physical capabilities.  That evaluation concluded
that claimant had "residual physical capacities in the light-medium work range, lifting and carrying 35 pounds occasionally
with increased symptoms." 
In May 1993, Burr re-examined claimant and concluded
that, in addition to the herniated disc, claimant suffered from
degenerative disc disease with continued symptomatic low back and
left leg discomfort.  Later, in response to a letter from
claimant's lawyer, Buza concurred with Burr's diagnosis.
Claimant filed an aggravation claim under ORS 656.273
(1993).  SAIF denied the claim in April 1993, concluding that
claimant's underlying condition had not worsened since his
earlier award.  Claimant requested a hearing, which was held in
March 1994.  The administrative law judge (ALJ) (2) noted that, to
prevail on his aggravation claim under ORS 656.273(1) (1993),
"claimant must show that increased symptoms or worsening of the
underlying condition resulted in diminished earning capacity." 
(Emphasis added.)  The ALJ concluded that, because the evidence
demonstrated that claimant's increased symptoms reflected more
than a mere waxing and waning of the symptoms anticipated at the
time of the PPD award, claimant had proved his aggravation claim. 
On June 1, 1995, the Board affirmed the ALJ's order.
Meanwhile, the 1995 Legislature enacted extensive
amendments to the Workers' Compensation Law, including an
amendment to ORS 656.273(1) that became effective on June 7,
1995.  Or Laws 1995, ch 332, §§ 31, 69.  That amendment applied
retroactively to claimant's case.  Or Laws 1995, ch 332, § 66. 
On June 29, 1995, SAIF petitioned for judicial review of the
Board's order, arguing that claimant had not proved his
aggravation claim under the 1995 version of ORS 656.273(1).
A majority of the Court of Appeals concluded that,
under ORS 656.273(1) (1995):
"[T]here [must] be direct medical evidence that a
condition has worsened.  It is no longer permissible
for the Board to infer from evidence of increased
symptoms that those symptoms constitute a worsened
condition for purposes of proving an aggravation claim. 
Here, both the hearings officer and the Board
considered the claim under the old standard.  The Board
specifically held that an actual worsening of the
condition may be proven by a symptomatic worsening, and
it based its conclusion that claimant had proven an
aggravation claim on evidence of claimant's increased
symptoms.  We hold that proof of a pathological
worsening is required. * * *"

Walker, 145 Or App at 305.  Accordingly, the Court of Appeals
reversed the Board's order and remanded the case to the Board for
reconsideration.  Id.  Two judges dissented, asserting that an
aggravation claim may be proved by evidence of increased symptoms
"greater than those that were contemplated in the prior award." 
Id. at 310 (Armstrong, J., dissenting).  We allowed claimant's
petition for review.
At the time when claimant filed his aggravation claim,
ORS 656.273(1) (1993) provided, in part:
"After the last award or arrangement of
compensation, an injured worker is entitled to
additional compensation, including medical services,
for worsened conditions resulting from the original
injury.  A worsened condition resulting from the
original injury is established by medical evidence
supported by objective findings. * * *" 

(Emphasis added.)  The 1995 Legislature amended that statute by
deleting the words "including medical services" and by adding the
wording set out below in boldface type:
"After the last award or arrangement of
compensation, an injured worker is entitled to
additional compensation for worsened conditions
resulting from the original injury.  A worsened
condition resulting from the original injury is
established by medical evidence of an actual worsening
of the compensable condition supported by objective
findings. * * *" 

Or Laws 1995, ch 332, § 31 (boldface type in original; deleted
text omitted; emphasis added).  As noted, the amended wording
applies retroactively to claimant's claim. 
SAIF contends that, to prove "an actual worsening of
the compensable condition" under the amended version of       
ORS 656.273(1), an injured worker must prove a worsening of the
underlying condition itself, rather than a worsening of the
symptoms arising from that condition.  Claimant, on the other
hand, contends that a worker may present evidence of either an
actual worsening of the compensable condition itself, which the
Court of Appeals characterized as a "pathological worsening," or
of a "symptomatic worsening" -- a worsening of the symptoms
arising from the compensable condition -- that is greater than
the symptomatic worsening anticipated at the time of the original
award.  
As explained more fully below, two questions are before
us, both of which present issues of statutory construction. 
First, we must determine whether ORS 656.273(1) (1995) requires
proof of a worsening of the underlying condition itself, or
whether proof of a certain degree of symptomatic worsening would
satisfy that statute.  Second, and in a related vein, we must
determine the role -- if any -- that worsened symptoms play in
the course of proving an aggravation claim.
Our task in resolving those issues is to determine the
legislature's intent when it amended ORS 656.273(1) in 1995.  In
doing so, we follow the template set out in PGE v. Bureau of
Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). 
We first examine the text and context of the statute.  Id. at
610-11.  Context includes other related statutes and earlier
versions of the statute at issue.  Id. at 611; Owens v. Maass,
323 Or 430, 435, 918 P2d 808 (1996).  At our first level of
analysis, we also consider case law interpreting the statute at
issue and related statutes, including earlier versions of those
statutes.  State v. Toevs, 327 Or 525, 532, 964 P2d 1007 (1998);
Owens, 323 Or at 435.  If the legislature's intent is clear from
an examination of text and context, then our inquiry is at an
end.  PGE, 317 Or at 611.
We begin by examining the wording of the phrase added
to ORS 656.273(1) in 1995 -- "actual worsening of the compensable
condition."  Although not defined specifically in the Workers'
Compensation Law, the term "compensable condition," as used in
ORS 656.273(1) (1995), refers to the medical condition for which
a worker already has been compensated.  See Stepp v. SAIF, 304 Or
375, 380, 745 P2d 1207 (1987) (defining the phrase "worsened
condition[] resulting from the original injury" in an earlier
version of ORS 656.273(1) as "the condition resulting from the
original injury that gave rise to the initial award or
arrangement of compensation").  As used in the Workers'
Compensation Law, the term "condition" is not the same as the
symptoms that relate to the underlying condition.  See, e.g.,  
ORS 656.214(7) (noting a distinction between a "condition" and
its "symptoms").
Under the structure of the phrase at issue, the term
"compensable condition" modifies the term "actual worsening,"
that is, what must "actual[ly] worsen" is the "compensable
condition."  As to the "actual worsening" requirement, the
dictionary definition for the word "actual" provides, in part:
"2 a : existing in act <our  intentions> : EXISTENT 
-- contrasted with potential and possible b : existing
in fact or reality : really acted or acting or carried
out -- contrasted with ideal and hypothetical <in 
life> <the  conditions>: distinguished from apparent
and nominal <the  cost of goods> 3 : not spurious :
REAL, GENUINE <an  blizzard> < falsehood> <hard-pressed but not in  poverty> * * * syn see REAL"  

Webster's Third New Int'l Dictionary, 22 (unabridged ed 1993)
(emphasis and boldface type in original).  Applying that meaning
to ORS 656.273(1) (1995), an "actual worsening of the compensable
condition" is one in which the underlying condition in fact has
worsened, as opposed to one in which the underlying condition has
not worsened. 
The foregoing textual analysis of ORS 656.273(1) (1995)
demonstrates that, to prove an aggravation claim, a worker must
present evidence of a worsening of the compensable condition
itself, not merely a worsening of the symptoms related to the
underlying condition.  That answers the first question before us
here, that is, whether a worker can satisfy the requirements of
ORS 656.273(1) (1995) by presenting evidence of worsened symptoms
alone.  The answer is "no."
In SAIF's view, that conclusion ends the matter,
because -- again, in SAIF's view -- that reading of the statute
precludes a worker from proving an aggravation claim by
presenting evidence only that his or her symptoms have worsened,
leaving it to a factfinder to infer whether that symptomatic
worsening demonstrates the existence of a worsened condition.  We
do not agree with SAIF that this case is resolved by that latter
proposition.  Rather, the question for us that remains unanswered
-- and it is the crux of the second issue before us -- is, given
our reading of the "actual worsening" requirement of          
ORS 656.273(1) (1995), when or how, if ever, does proof of a
symptomatic worsening come into play when a worker seeks an
aggravation award?  Stated differently, this case requires that
we determine whether and to what degree a factfinder may consider
evidence of worsened symptoms when determining whether a worker
has presented medical evidence of an actual worsening of the
compensable condition.  The statutory text of ORS 656.273(1)
(1995) is not helpful in that regard.  We turn to the statutory
context, as well as the applicable case law, to address that
question.
The original version of ORS 656.273(1), enacted in
1973, provided:

"After the last award or arrangement of
compensation, an injured work[er] is entitled to
additional compensation, including medical services,
for worsened conditions resulting from the original
injury."

Or Laws 1973, ch 620, § 5. (3)  In the years that followed the
enactment of that statute, this court issued a series of
decisions that laid the foundation for the "symptomatic
worsening" question before us now.  The first decision was Smith
v. SAIF, 302 Or 396, 401, 730 P2d 30 (1986), in which this court
held that, under the extant version of ORS 656.273(1), increased
symptoms were not compensable "unless the worker suffers pain or
additional disability that results in loss of the worker's
ability to work and the worker thereby suffers a loss of earning
capacity."  The court did not hold specifically that the statute
required that the underlying condition itself actually have
worsened; rather, the court focused upon a change in the
condition that made the worker "more disabled," that is, "less
able to work."  Id. at 399 (internal quotation marks omitted).
Next, in Gwynn v. SAIF, 304 Or 345, 352, 745 P2d 775
(1987), this court explained:
"Compensation is not payable under the Workers'
Compensation Law for symptoms alone, but to the extent
that symptoms, such as pain, dizziness, nervousness,
etc., cause loss of function of the body or its parts
and, in the case of unscheduled disability, resulting
loss of earning capacity, the disabling effects of the
symptoms are to be considered in fixing awards for
disability. * * * The mere 'waxing' of a physical
condition or of a symptom, whether or not anticipated,
will not amount to a worsening sufficient to satisfy
the requisites for a claim under ORS 656.273.  But what
if the waxing results in a greater disability?


"If waxing continues to the point where the worker
is incapacitated from regularly performing work at a
gainful and suitable occupation, * * * [i]t is
logically inescapable that this is a worsening. * * *
"If waxing continues to the point where the
worker's condition falls short of total disability,   
* * * but becomes medically stationary at an extent
greater than previously awarded, this too must be a
worsening, for the worker's loss of capacity to earn
has been increased."

(Citations omitted.)  Again, the court focused upon the worker's
ability to work, rather than upon a medical assessment of changes
in the underlying condition.  Finally, in Perry v. SAIF, 307 Or
654, 657, 772 P2d 418 (1989), the court clarified that the
central inquiry in determining the existence of a worsened
condition under the extant version of ORS 656.273(1) was "whether
the symptoms such as pain have caused loss of function of the
body and resulted in loss of earning capacity."
Taken together, Smith, Gwynn, and Perry stood for the
proposition that, under an earlier version of ORS 656.273(1),
evidence of worsened symptoms alone could prove an aggravation
claim if the worsened symptoms resulted in a loss of bodily
function such that the worker was less able to work and,
consequently, suffered a loss of earning capacity.  Additionally,
in Gwynn, the court clarified that evidence of a "mere waxing of
a physical condition or of a symptom, whether or not
anticipated," could not prove an aggravation claim.  304 Or at
352 (internal quotation marks omitted; emphasis added).
In light of those three cases, the Board began
analyzing aggravation claims under ORS 656.273(1) by determining,
as relevant here:  (1) whether a worker had suffered a worsened
condition, in the form either of a worsening of the underlying
condition itself or of an exacerbation of symptoms; (2) whether
that worsening or symptomatic exacerbation had resulted in
diminished earning capacity; (3) whether an earlier award of
compensation had anticipated future exacerbation of the condition
or of its symptoms, accompanied by diminished earning capacity;
and (4) whether the worker's actual diminished earning capacity
had exceeded that anticipated by the earlier arrangement or award
of compensation.  See, e.g., Edward D. Lucas, 41 Van Natta 2272,
2274-75 (1989), rev'd on other grounds by Lucas v. Clark, 106 Or
App 687, 809 P2d 712 (1991) (setting out analysis).  In its
opinion in Lucas, the Court of Appeals emphasized that, under
Gwynn, "[i]f the last award or arrangement of compensation
included consideration of anticipated future exacerbations of the
condition or symptoms, the [worker] must prove that the worsening
has been greater than was anticipated."  Lucas, 106 Or App at
690.  Thus was born a test of sorts requiring an inquiry into
whether a worsening of the condition or of its symptoms was
within the range "anticipated" by an earlier award. 
In 1990, the legislature enacted a series of amendments
to the Workers' Compensation Law, including an amendment adding
the requirement to ORS 656.273(1) that a "worsened condition" be
"established by medical evidence supported by objective
findings."  Or Laws 1990, ch 2, § 18.  Additionally, the 1990
Legislature enacted ORS 656.273(8), which has remained unchanged
since its enactment and provides:
"If the worker submits a claim for aggravation of
an injury or disease for which permanent disability has
been previously awarded, the worker must establish that
the worsening is more than waxing and waning of
symptoms of the condition contemplated by the previous
permanent disability award."

(Emphasis added.)  Thus, ORS 656.273(8) requires a worker with
permanent disability -- such as claimant -- who seeks an
aggravation award to establish that the "worsening" at issue is
more than "waxing and waning of symptoms of the condition" that
were "contemplated" by the earlier permanent disability award. 
The word "waxing," in this context, means an increase in
symptoms.  See Webster's Third New Int'l Dictionary at 2587
(defining the verb "wax", in part, as "to increase in * * *
intensity * * *: * * * to grow in volume or duration").  Applying
that meaning, ORS 656.273(8) speaks to an increase in symptoms
beyond what was "contemplated" at the time of the original award. 
That reading is consistent with the body of law that grew out of
Smith, Gwynn, and Perry, requiring a worker to prove either a
worsening of the condition or of the symptoms arising out of the
condition that exceeded the range anticipated by an earlier award
or arrangement of compensation.  It also is logical to conclude
that, in light of that body of law -- which allowed a worker to
claim aggravation for worsened symptoms alone (resulting in the
loss of earning capacity) -- the legislature intended         
ORS 656.273(8) to clarify that a worker could not prove an
aggravation claim under ORS 656.273(1) merely by presenting
evidence of a symptomatic worsening that fell within the range
anticipated by an earlier permanent disability award, but could
do so by presenting evidence of a symptomatic worsening that
exceeded that amount.
After the enactment of ORS 656.273(8) in 1990, the
Court of Appeals and the Board repeatedly held that a worker with
permanent disability seeking an aggravation award must establish
that his or her symptoms had worsened to a degree greater than
that anticipated by the earlier award.  See, e.g., Nethercott v.
SAIF, 126 Or App 210, 213, 867 P2d 566 (1994) (ORS 656.273(8)
requires proof that increased symptoms are more than waxing of
symptoms contemplated by earlier permanent disability award);
Leroy Frank, 43 Van Natta 1950, 1951 (1991) (ORS 656.273(8)
codified requirement that symptomatic worsening be more than
waxing of symptoms contemplated by earlier award).  The Board,
however, continued its practice of allowing a worker to establish
a worsened condition by presenting either evidence of a worsening
of the underlying condition itself or evidence of a worsening of
symptoms, leaving it to a factfinder in the latter case to infer
from such evidence that a worsened condition existed.  See, e.g.,
Lloyd G. Currie, 45 Van Natta 492, 494 (1993) (so requiring, in
addition to requiring proof of symptomatic worsening greater than
anticipated by earlier award under ORS 656.273(8)); Frank, 43 Van
Natta at 1950-51 (same).  Additionally, the Board imposed the
requirement set out in ORS 656.273(8) only in cases in which a
worker sought to establish a worsened condition under         
ORS 656.273(1) by presenting medical evidence of a symptomatic
worsening.  In the Board's view, if a worker presented evidence
that the underlying condition, not merely its symptoms, had
worsened, then subsection (8) of ORS 656.273 did not apply.  See,
e.g., Richard C. Wendler, 47 Van Natta 87, 87 (1995) (so
explaining).
In 1995, as already discussed to some extent, the
legislature again enacted a series of amendments to the Workers'
Compensation Law, including adding the "actual worsening of the
compensable condition" wording to ORS 656.273(1).  Or Laws 1995,
ch 332, § 31.  The 1995 Legislature also enacted ORS 656.214(7),
which provides:

"All permanent disability contemplates future
waxing and waning of symptoms of the condition.  The
results of waxing and waning of symptoms may include,
but are not limited to, loss of earning capacity,
periods of temporary total or temporary partial
disability, or inpatient hospitalization."

Under ORS 656.214(7), an original award of permanent disability,
like claimant's, assumes that a worker's symptoms related to the
compensable condition might wax or wane.  That statute therefore
complements ORS 656.273(8), because, together, they clarify that
a worker with a prior permanent disability award who experiences
only a "waxing" of symptoms associated with the underlying
condition -- that is, increased symptoms contemplated by the
earlier award -- will not qualify for an aggravation award.
Finally, two additional statutes also relate to our
inquiry into the "symptomatic worsening" question.  The first is
ORS 656.273(3), which provides:

"A claim for aggravation must be in writing in a
form and format prescribed by the [D]irector [of the
Department of Consumer and Business Services] and
signed by the worker or the worker's representative. 
The claim for aggravation must be accompanied by the
attending physician's report establishing by written
medical evidence supported by objective findings that
the claimant has suffered a worsened condition
attributable to the compensable injury."

(Emphasis added.)  Thus, to prove an aggravation claim under
subsection (1) of ORS 656.273 (1995), subsection (3) requires
submission of a written physician's report containing the same
information required by subsection (1), that is, "medical
evidence supported by objective findings" that the worker has
suffered a worsened condition.
The other contextually relevant statute is          
ORS 656.005(19), which sets out the definition of the term
"objective findings" for purposes of the Workers' Compensation
Law.  That statute provides:

"'Objective findings' in support of medical
evidence are verifiable indications of injury or
disease that may include, but are not limited to, range
of motion, atrophy, muscle strength and palpable muscle
spasm.  'Objective findings' does not include physical
findings or subjective responses to physical
examinations that are not reproducible, measurable or
observable."

Applying that definition to ORS 656.273(1) (1995), as well as to
ORS 656.273(3), a worker must prove an "actual worsening of the
compensable condition" by presenting "verifiable indications of
injury" that may include a worsening of symptoms, such as
decreased range of motion, decreased muscle strength, or atrophy. 
Stated differently, ORS 656.005(19) demonstrates that, in the
context of proving an aggravation claim under ORS 656.273(1)
(1995), a worker's medical evidence may be supported by objective
findings that demonstrate that his or her symptoms have worsened. 
The question, however, is how evidence of a symptomatic worsening
alone comes into play when ORS 656.273(1) (1995) requires a
worker to establish the existence of a worsened condition. (4)
To summarize the relevant statutes, the legislature
amended ORS 656.273(1) in 1995 after years of case law had held
that a worker could establish a "worsened condition" by
presenting evidence of a worsening of the underlying condition
itself or of its symptoms -- in the latter case, with a
factfinder inferring the existence of a worsened condition from
evidence of a symptomatic worsening.  As its text clearly
demonstrates, the 1995 version of ORS 656.273(1) requires
something different:  Proof, based upon medical evidence
supported by objective findings, of a worsening of the underlying
condition itself, not merely of its symptoms.  Under          
ORS 656.005(19), however, such "objective findings" may include
evidence of worsened symptoms.  Additionally, ORS 656.273(8),
which has remained unchanged since its enactment in 1990,
continues to require -- as did the case law that preceded it --
that a worker with permanent disability establish that the
"worsening" at issue is more than a waxing of symptoms associated
with the underlying condition, that is, an increase in symptoms
that exceeds the degree anticipated by the earlier award. 
In view of the statutory chronology set out above, it
appears that ORS 656.273(8) represented the legislature's first
attempt to prevent aggravation awards based solely upon evidence
of worsened symptoms -- specifically, a symptomatic worsening
within the range contemplated by an earlier award of permanent
disability.  As discussed, before 1995, the Court of Appeals and
the Board construed that statute together with ORS 656.273(1) to
allow a worker to prove an aggravation claim by presenting
evidence of a symptomatic worsening that exceeded the range
contemplated by an earlier award.  The 1995 Legislature then went
a step further, by amending ORS 656.273(1) to require that a
"worsened condition" be established by medical evidence of an
actual worsening of the underlying condition itself, rather than
evidence of any degree of symptomatic worsening alone.
In amending ORS 656.273(1) in 1995, the legislature
neither repealed nor amended ORS 656.273(8).  That suggests that
those two statutes continue to serve different functions.  Our
examination of the text and context of those statutes confirms
that conclusion.  ORS 656.273(8) provides that the worker's proof
must consist of something more than a waxing of symptoms of the
condition contemplated by the previous award.  That statute
serves to preclude an aggravation award if the evidence consists
of only a worsening of symptoms within the contemplated range. 
However, the legislature's description in ORS 656.273(8) of the
threshold below which no worker's proof may fall does not state
the proof standard that a valid claim for aggravation must
satisfy.  That function is fulfilled by ORS 656.273(1) (1995).
The standards established in ORS 656.273(1) (1995) and
(8) do not limit the admissibility or relevance of competent
evidence of worsened symptoms or their disabling effects.  As
noted above, ORS 656.005(19) anticipates that that kind of
evidence may support the "objective findings" and "medical
evidence" that ORS 656.273(1) (1995) requires.  Thus, the
legislature's amendment to ORS 656.273(1) in 1995 does not affect
this court's conclusion in Gwynn, 304 Or at 352, that the effects
of worsened symptoms upon bodily function and earning capacity
"are to be considered" in claims under ORS 656.273(1) (1995). (5)
What the 1995 amendment to ORS 656.273(1) introduced
was the requirement that a worker prove, through medical evidence
supported by objective findings, that the compensable condition
itself actually has worsened.  In that context, evidence of
worsened symptoms, while relevant, is not sufficient by itself to
meet the proof standard created by ORS 656.273(1) (1995). 
However, because evidence of worsened symptoms is relevant to the
question whether the compensable condition actually has worsened,
and might in some cases be the best evidence regarding that fact,
a physician may rely upon that kind of evidence in determining
whether the compensable condition has worsened and in opining on
that question to the factfinder or to the Board.  In other words,
the "medical evidence * * * supported by objective findings" that
is required under ORS 656.273(1) (1995) and (3) to prove an
"actual worsening of the compensable condition" may include a
physician's written report commenting that the worker's worsened
symptoms demonstrate the existence of a worsened condition.
In sum, when considered together, the text, context,
and applicable case law surrounding the 1995 amendment to         
ORS 656.273(1) clarify the legislature's intended meaning of that
statute, as well as the interplay between that statute and    
ORS 656.273(8).  We hold that evidence of a symptomatic worsening
that exceeds the amount of waxing anticipated by an original
permanent disability award -- that is, the degree of worsening
addressed in ORS 656.273(8) -- may prove an aggravation claim
under ORS 656.273(1) (1995) if, but only if, a physician
concludes, based upon objective findings (which may incorporate
the particular symptoms), that the underlying condition itself
has worsened.  Stated differently, in the circumstances just
described, the statutory requirement set out in ORS 656.273(8)
can operate together with ORS 656.273(3) and ORS 656.005(19) as a
means of establishing a worsened condition under ORS 656.273(1)
(1995).  However, if, in a physician's medical opinion, a
symptomatic worsening that exceeds the degree anticipated does
not demonstrate the existence of an actual worsening of the
underlying condition, then the worker does not qualify for an
aggravation award.
In this case, as noted, the ALJ required claimant to
prove either that increased symptoms or a worsened condition had
resulted in diminished earning capacity.  The ALJ then reviewed
the evidence of claimant's worsened symptoms and inferred from
that evidence alone that claimant's underlying condition had
worsened.  By affirming the ALJ's application of that legal
standard, the Board erred.  Accordingly, we reverse the Board's
order and remand the case to the Board for further proceedings. 
On remand, the Board must apply the legal standard set out above
to determine whether claimant has established a worsened
condition under ORS 656.273(1) (1995).  See Gwynn, 304 Or at 349
(court's function in workers' compensation cases is not to
determine facts, but to clarify legal premises upon which factual
determinations must be made). (6)
The decision of the Court of Appeals is affirmed.  The
order of the Workers' Compensation Board is reversed, and the
case is remanded to the Workers' Compensation Board for further
proceedings.




1. ORS 656.273(1) (1995) is set out in the text below. 
The current version of ORS 656.273(1) is the same as the 1995
version.  For the sake of clarity, because we also refer to
earlier versions of the statute in this opinion, we denote the
1995 version by year throughout.

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2. Before 1995, ALJs were known as referees.  See Or Laws
1995, ch 332 (changing "referee" to "administrative law judge"
throughout the Workers' Compensation Law).  We refer to the
referee in this case as an ALJ throughout this opinion.

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3. ORS 656.273(1) replaced an earlier statute, 
ORS 656.271, that governed aggravation claims.  See Or Laws 1973,
ch 620, § 4 (repealing ORS 656.271).

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4. Both parties also point to ORS 656.225, which pertains
to the compensability of certain preexisting conditions, as
contextual support for their respective readings of           
ORS 656.273(1) (1995).  That statute provides, in part:

"In accepted injury or occupational disease
claims, disability solely caused by or medical services
solely directed to a worker's preexisting condition are
not compensable unless:
"(1) In occupational disease or injury claims
other than those involving a preexisting mental
disorder, work conditions or events constitute the
major contributing cause of a pathological worsening of
the preexisting condition.
"(2) In occupational disease or injury claims
involving a preexisting mental disorder, work
conditions or events constitute the major contributing
cause of an actual worsening of the preexisting
condition and not just of its symptoms."

(Emphasis added.)  We have considered the parties' arguments
concerning ORS 656.225, but conclude that that statute is not
helpful in determining the issue before us.

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5. However, as explained above, ORS 656.214(7) now
clarifies that an initial award of permanent disability
contemplates that the effects of a waxing of symptoms may include
periods of temporary total or temporary partial disability, or
loss of earning capacity.

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6. In addition to the question whether claimant
sufficiently established the existence of a worsened condition,
our review of the record discloses a discrepancy as to whether
the injury that resulted in claimant's underlying compensable
condition was the major contributing cause of claimant's alleged
worsened condition.  On remand, the Board must weigh the facts
pertaining to all the elements of an aggravation claim under   
ORS 656.273(1) (1995) -- including causation -- to determine
whether claimant qualifies for an aggravation award.
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