This case presents the interesting issue of the interplay of statutes and rules relating to the compensability of and responsibility for occupational disease claims and consequential conditions. See ORS 656.005(7)(a)(A); ORS 656.802. Employer Wastе Management (WM) seeks judicial review of an order of the Workers’ Compensation Board setting aside its compensability denial of an occupational disease claim and assigning it responsibility for claimant’s degenerative condition of the left knee under the last injurious exposure rule. WM contends that it should not be held responsible, because claimant’s knee condition is the consequence of an earlier compensablе injury with a different employer. We conclude that the board did not err, and affirm.
The facts are undisputed. Claimant has a long history of knee and back problems. This petition for review concerns only claimant’s occupational disease claim for degenerative arthritis of the left knee. Claimant suffered a compensable left knee injury in 1976, while working for an employer who is not joined in this proceeding. Claimant’s physician diagnosed an “internаl derangement of the left knee” and treated the knee with a left knee medial meniscectomy.
In April 1999, while working for SAIF’s insured, Copenhagen, Inc., claimant fell onto his knees. His physician diagnosed “[trilateral knee contusion оn top of chronic medial compartment arthritis[.]” SAIF accepted bilateral knee contusions. At the time of claim closure, claimant’s physician stated that claimant had permanent impairment in his knees, due to his рreexisting knee conditions.
In November 2002, claimant began working for WM. He was hired as a mechanic, and the work required him to lie on his back, kneel, and climb. After approximately three weeks, claimant began to experience symptoms in his knees and low back, and sought treatment. He did not feel that he could continue working for WM, and he quit his job on December 14, 2002. Claimant saw an orthopedic surgeon, who diagnosed degenerative arthritis and recommended that claimant undergo a left knee replacement surgery. Claimant filed an occupational disease claim for degenerative arthritis of the left knee with SAIF and with WM. SAIF denied the *283 claim, as did WM, and claimant requested a hearing. An administrative law judge (ALJ) determined that claimant’s left knee condition was compensable, but that it was a consequence of his 1976 injury with the employer that had not been joined. For that reason, the ALJ upheld the SAIF and WM dеnials, and claimant requested board review.
The board reversed the ALJ. Doctors Cook and Steele believed that claimant’s 1976 injury and meniscectomy were the major contributing cause of his left knee condition. Both also expressed the opinion that claimant’s work activities throughout his lifetime, including the 1976 and 1999 work injuries, as well as his work with SAIF’s insured and with WM, contributed to his condition. Relying on those opinions, and
citing Kepford v. Weyerhaeuser Co.,
On judicial review, WM asserts that the board erred in applying the last injurious exposure rule to assign it responsibility for claimant’s occupational disease claim,
*284
rather than determining, as we did in
SAIF v. Webb,
SAIF sought to shift responsibility for the claimant’s condition to a subsequent employer, under either the last injurious еxposure rule or the presumption of
Industrial Indemnity Co. v. Kearns,
“[n]o injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.”
We explained in
Webb
that, under that statute, liability for a consequential condition falls on the employer with an accepted injury that is the major contributing cause of the consequential condition.
*285 WM attempts to extend our analysis in Webb to this case: If liability for a consequential condition falls on the employer with an accepted injury that is the major contributing cause of the condition, then, necessarily, a condition that is caused in major part by a previously accepted injury is the responsibility of the employer at risk at the time of that accepted injury. There are several reasons why we conclude that the analysis we applied in Webb is not applicable here.
The primary distinction is that the two cases depend on separate and distinct theories of compensability. Hеre, claimant filed a claim for an occupational disease, i.e., a claim that requires proof that his “employment conditions were the major contributing cause of [his occupational] disease.” ORS 656.802(2)(a). In Webb, the claimant filed a claim for a consequential condition as a result of one of three compensable injuries. ORS 656.005(7)(a)(A).
In a consequential condition claim, the claimant seeks to establish that a condition is compensable as a consequence of a previous compensable injury. The claim is compensable if the previous injury is the major contributing cause of the condition. Necessarily, although ORS 656.005(7)(a)(A) does not expressly relate to the assignment of responsibility, rеsponsibility for a consequential condition claim falls on the insurer or employer at risk at the time of the previous compensable injury. Here, by contrast, in his occupational disease claim, claimant did not seek to establish that his degenerative arthritis condition was compensable as a consequence of any particular prior accepted injury. Rather, he sought to connect his knee condition to years of еmployment activities. ORS 656.802(l)(a)(C) (An occupational disease is “[a]ny series of traumatic events or occurrences.”).
WM argues that, despite claimant’s chosen theory of compensability, the medical evidencе shows that claimant’s knee condition is, in fact, a consequential condition because it is a consequence of his 1976 injury. The board expressly rejected WM’s argument that the condition was a consequence of a single injury, and that determination is supported by substantial evidence. The board found that “the condition at issue is the degenerative arthritis resulting from *286 the treatment of the 1976 injury and subsequent factors, not the 1976 injury itself.” (Emphasis added.)
As previously noted, ORS 656.802(2)(c) provides, “Occupational disease claims shall be subject to all of the same limitations and exclusions as accidental injuries under ORS 656.005(7).” If claimant had sought to establish the compensability of his occupational disease claim as a consequential condition, Le., as the consеquence of a previously accepted injury — or if the board had determined that the claim was most appropriately characterized as a consequential condition claim — then the claim would be subjeсt to the provisions of ORS 656.005(7)(a)(A), and the compensability of the condition would depend on proof that one of claimant’s previous compensable injuries was its major contributing cause. Webb would provide guidance in determining which employer should bear responsibility for the claim. However here, unlike in Webb, claimant did not seek to establish the compensability of his condition as a consequential condition, 1. e., to connect it to a particulаr accepted injury. He sought to establish the compensability of the condition as an occupational disease caused by all his prior employment conditions, including any previous injuries.
Because the board found that claimant’s condition is properly considered as an occupational disease, and not as a consequential condition,
See DiBrito v. SAIF,
As a rule of responsibility, the last injurious exposure rule presumptively assigns responsibility to the most recent potentially causal employer for which a claimant worked or was working at the time the claimant became disabled or first sought or received medical treatment, whichever comes first.
Bracke v. Baza’r,
Affirmed.
Notes
ORS 656.802 provides, in part:
“(l)(a) As used in this chapter, ‘occupational disease’ means any disease or infection arising out of and in the course of employment * * * including:
# # #
“(C) Any series of traumatic events or occurrences which requires medical services or results in physical disability or death.
“(2)(a) The worker must prove that employment conditions were the major contributing cause of the disease.
«íjí ‡ ‡ ‡ ‡
“(c) Occupational disease claims shall be subject to all of the same limitations and exclusions as accidental injuries under ORS 656.005(7).”