465 P.3d 246
Or. Ct. App.2020Background
- Claimant William Lodge was a boilermaker from 1966 until retiring in 2012 while employed by NAES; he then worked seasonally for SCI from 2013–2016 doing sawing, welding, grinding, and hammering.
- In 2014 an ENT diagnosed bilateral noise‑induced hearing loss; claimant filed occupational disease claims against both NAES and SCI; SCI was the last employer and therefore presumptively liable under the last injurious exposure rule (LIER).
- Three medical opinions were in the record: Dr. Lipman attributed the hearing loss solely to claimant’s boilermaker work; Dr. Hodgson apportioned hearing loss to prior occupational exposure (major/sole occupational cause), age, and recreational gun use (and said it was “medically probable” occupational exposure occurred before SCI); Dr. Wilson concluded it was medically probable occupational exposure occurred before SCI.
- The Workers’ Compensation Board concluded SCI had not shown literal impossibility that SCI caused any contribution, but found, to a reasonable medical probability, that claimant’s prior employment (including NAES) was the sole cause and shifted liability to NAES under the LIER.
- NAES petitioned for review, arguing the board applied the wrong legal standard (requiring only medical probability rather than eliminating any possibility of SCI contribution) and that the record lacked substantial evidence and reason to support a sole‑cause finding.
- The Court of Appeals affirmed: it held the board correctly applied the LIER, that reasonable‑medical‑probability evidence can satisfy the Roseburg Forest Products sole‑cause prong, and that substantial evidence and reason supported the board’s decision.
Issues
| Issue | NAES’s Argument | SCI’s Argument | Held |
|---|---|---|---|
| Whether the board applied the correct standard under the LIER (must a presumptively liable employer prove impossibility or is reasonable medical probability sufficient?) | Board erred by using a medical‑probability standard; any possibility of contribution from SCI should preclude shifting liability | Reasonable medical probability (preponderance) suffices to satisfy Roseburg Forest Products prongs | Reasonable medical probability is an acceptable standard; the board did not err |
| Whether SCI satisfied the Roseburg Forest Products sole‑cause prong when experts allowed a possibility that SCI contributed | Any possibility of contribution defeats a sole‑cause finding; sole cause requires exclusion of any contribution | The impossibility and sole‑cause prongs are independent; experts’ probable attribution to prior work supports sole‑cause shift | Court: possibility ≠ proof of actual contribution; evidence supported sole‑cause finding despite experts declining absolute certainty |
| Whether the board’s sole‑cause finding was supported by substantial evidence and substantial reason | Record lacks substantial evidence; board failed to reconcile experts who left open a contribution possibility | Expert testimony that occupational exposure occurred before SCI and that prior work was the likely/sole occupational cause supplies substantial evidence | Affirmed: board’s findings were supported by substantial evidence and provided adequate reasoned explanation |
Key Cases Cited
- Roseburg Forest Products v. Long, 325 Or 305 (1997) (LIER framework: last employer presumptively liable; liability may be shifted by proving impossibility or sole cause)
- Liberty Metal Fabricators v. Lynch Co., 295 Or App 809 (2019) (reasonable medical probability / preponderance suffices in LIER shifting analysis)
- Beneficiaries of Strametz v. Spectrum Motorwerks, Inc., 325 Or 439 (1997) (LIER cannot impose liability where employer’s conditions were not the actual cause)
- Foster Wheeler Corp. v. Marble, 188 Or App 579 (2003) (discusses when evidence that a later employer could have contributed precludes a sole‑cause finding)