962 P.2d 777 | Or. Ct. App. | 1998
Claimant seeks review of an order of the Workers’ Compensation Board (Board). The Board adopted and affirmed an order of the administrative law judge (ALJ) denying the compensability of claimant’s claim. We review for errors of law and substantial evidence, ORS 656.298(7); ORS 183.482(7) and (8), and reverse and remand.
Claimant began working as a long-haul truck driver in 1975. Most recently, he worked with employer, beginning in 1992 and ending in 1995. Throughout his years as a long-haul driver, claimant’s work caused him to use his hands in ways that ultimately led to his medical condition—e.g., holding a steering wheel that vibrated, switching gears, cinching chains and straps, and loading and unloading items. In 1992, claimant began to experience numbness in his hands, a sensation that gradually increased in intensity. In 1996, claimant went to a doctor for treatment and subsequently filed a claim for an occupational disease with employer. Shortly thereafter, claimant was diagnosed with severe bilateral carpal tunnel syndrome and was advised to obtain surgery.
Employer’s insurer had a physician examine claimant. That physician reviewed claimant’s history and medical records and reported that claimant’s work as a truck driver was the major contributing cause of claimant’s condition. Two weeks later, insurer denied the compensability of claimant’s occupational disease, writing in a denial letter that “[ijnformation obtained during this investigation fails to establish your condition * * * is related to your work activity with [employer].” Employer did not dispute responsibility.
Claimant requested a hearing on the issue of compensability
Apart from the specific circumstances of this case, two additional facts are present here that were not before the Board in its determination of this case. First, after the Board issued its decision in this case, we reversed the Board in Garibay v. Barrett Business Services, 148 Or App 496, 941 P2d 1036 (1997). Second, in Garibay, we applied the 1990 version of ORS 656.308(2);
Claimant assigns error to the Board’s order affirming the compensability denial of claimant’s occupational disease claim. Claimant contends that, because “the instant case is legally indistinguishable from Garibayl,]” stare decisis mandates a reversal here. Though we disagree with claimant that Garibay controls the outcome here, for the reasons that follow, we agree that the Board’s order must be reversed and remanded for reconsideration.
Claimant is correct that the facts of this case are analogous to the facts of Garibay. There, over a 13-year period, the claimant had worked for three employers with working conditions capable of causing his medical condition. 148 Or App at 498. However, he filed an occupational disease
On judicial review, we viewed the case differently from the Board, framing it as a case “about responsibility!,]” rather than compensability. Id. at 501. We concluded that, “although [the employer] did not, in the technical sense, raise responsibility as a defense, that was the practical effect of its contention to the ALJ that [the] claimant had a preexisting condition for which [the employer] was not responsible.” Id. at 501. Our analysis followed from that conclusion. We analyzed the effect of the employer’s failure to comply with the responsibility disclaimer requirement of ORS 656.308(2) (1990), which provided, in part:
“Any employer or insurer which intends to disclaim responsibility for a given injury or disease claim on the basis of an injury or exposure with another employer or insurer shall mail a written notice to the worker as to this position. * * * Any employer or insurer against whom a claim is filed may assert, as a defense, that the actual responsibility lies with another employer or insurer, regardless of whether or not the worker has filed a claim against that other employer or insurer, if that notice was given as provided in this subsection(Emphasis supplied.)
As the emphasized language shows, ORS 656.308(2) (1990) expressly conditioned an employer’s ability to assert a responsibility defense on its earlier provision of a responsibility disclaimer to the claimant. We held that the employer’s failure to comply with the disclaimer requirement “barred [the employer] from making [a responsibility] argument.” Id. at 501. In holding so, we did not address the compensability question that the Board considered in Garibay.
We hold that the Board must do so. The Board’s decision not to apply the LIER rule as a rule of proof when the medical evidence would otherwise establish compensability under the rule is inconsistent with the objective of Oregon’s Workers’ Compensation Law (Law). That goal is to provide compensation benefits to Oregon workers who have legitimately been injured as a result of their employment, ORS 656.012(2), a goal that also influenced the adoption of the LIER rule in Oregon. See Inkley v. Forest Fiber Products Co., 288 Or 337, 343, 605 P2d 1175 (1980) (rule was adopted as a method to avoid the “inequity of denying a disabled worker his benefits under the statute because he mistakenly filed against the wrong employer”).
Here, as in Garibay, the undisputed evidence showed that the major contributing cause of claimant’s occupational disease was his work. Such evidence would have supported a finding of compensability under the LIER of proof.
Here, because the ALJ determined that “the medical evidence in this case established] that claimant’s work as a truck driver caused his carpal tunnel syndrome[,]” a result we find to be supported by substantial evidence, the Board should have applied the LIER of proof to establish the compensability of claimant’s occupational disease claim.
Reversed and remanded for reconsideration.
At the hearing, claimant also raised the issue of a penalty for an unreasonable denial; however, that issue is not before us in this judicial review.
We applied the 1990 version of ORS 656.308(2) in Garibay because the 1995 amendments altered time limitations with respect to actions that had been taken on the claim before the effective date of those amendments. Garibay v. Barrett Business Services, 148 Or App 496,499 n 2,941 P2d 1036 (1997) (citing Norstadt v. Murphy Plywood, 148 Or App 484, 941 P2d 1030, mod 150 Or App 245, 942 P2d 654 (1997)).
The LIER has two aspects, a rule of proof and a rule of assignment of responsibility. As a rule of assignment of responsibility, it assigns full responsibility to the last employer that could have caused the claimant’s medical condition. Willamette Industries v. Titus, 151 Or App 76, 81, 950 P2d 318 (1997) (citing Roseburg Forest Products v. Long, 325 Or 305, 309, 937 P2d 517 (1997)).
In a workers’ compensation case, a claimant triggers a hearing by the submission of a “Request for Hearing” on which the claimant checks one or more of several boxes that identify the issues to be argued. Our reference to a “pleading” here is a reference to a “Request for Hearing.”