435 P.3d 810
Or. Ct. App.2019Background
- Claimant worked for Lynch (1996–2006), then Liberty (2006–June 2014), then returned to Lynch (June–Nov 2014) and retired; he sought treatment for hearing loss in Feb–Apr 2016 and filed occupational disease claims against both employers.
- Audiograms: one in June 2014 (before returning to Lynch) and another in April 2016; treating otolaryngologist Dr. Lipman concluded there was no appreciable change between tests.
- Lipman opined claimant’s cumulative hearing loss was caused by life‑long exposure in metal fabrication and that the second Lynch employment could not have caused or contributed to the loss; he acknowledged a possible 1 dB change but said <5 dB is test‑retest variability and non‑measurable.
- Both employers conceded compensability but disputed responsibility; the Workers’ Compensation Board applied the last injurious exposure rule and assigned responsibility to Liberty (the most recent potentially causal employer before claimant first sought treatment).
- The board found Lynch had established, via Lipman’s opinion, that the later Lynch employment could not have contributed to the hearing loss, so responsibility shifted to Liberty.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board properly applied the last injurious exposure rule to assign responsibility to Liberty | Claimant: board correctly applied rule and relied on medical evidence excluding Lynch’s last employment as causal | Liberty: board misapplied Roseburg by treating “impossibility” as a matter of "reasonable medical probability" | Affirmed — board may rely on medical opinion stated in terms of reasonable medical probability to shift responsibility |
| Whether evidence that a non‑measurable possibility of contribution exists defeats a finding of impossibility | Claimant: Lipman’s overall opinion shows no contribution from Lynch’s later employment | Liberty: Lipman’s admission of a possible (though insignificant) 1 dB change prevents finding of impossibility | Rejected — proof of literal impossibility is not required; medical opinion that contribution is not reasonably probable suffices to shift responsibility |
Key Cases Cited
- Waste Management v. Pruitt, 224 Or. App. 280 (last injurious exposure rule assigns presumptive responsibility to most recent potentially causal employer)
- Beneficiaries of Strametz v. Spectrum Motorwerks, 325 Or. 439 (employer can shift responsibility by proving prior employment caused or worsened disease)
- Roseburg Forest Products v. Long, 325 Or. 305 (same — framework for shifting responsibility)
- Blank v. US Bank of Oregon, 252 Or. App. 553 (preponderance standard for injury claims)
- SAIF v. Alton, 171 Or. App. 491 (preponderance standard applies to occupational disease claims)
- Robinson v. SAIF, 147 Or. App. 157 (reasonable medical probability as standard for medical causation)
- McIntyre v. Standard Utility Contractors, Inc., 135 Or. App. 298 (reasonable medical probability standard)
- Mandell v. SAIF, 41 Or. App. 253 (medical causation must be expressed in reasonable medical probability)
- Port of Portland OCIP v. Cierniak, 207 Or. App. 571 (reasonable medical probability applies in responsibility context)
- City of Albany v. Cary, 201 Or. App. 147 (medical evidence not stated in reasonable medical probability is insufficient)
- Hicks v. SAIF, 196 Or. App. 146 (board’s reasonable interpretation of medical evidence will be affirmed if supported by substantial evidence)