968 P.2d 1281 | Or. | 1998
Filed: December 3, 1998
In the Matter of the Compensation of
Deana F. Marshall, Claimant.
DEANA F. MARSHALL,
Respondent on Review,
v.
SAIF CORPORATION,
Petitioner on Review.
On review from the Court of Appeals.*
Argued and submitted November 4, 1997; reassigned July 16, 1998.
Michael O. Whitty, Salem, argued the cause for petitioner on review. Julene M. Quinn, Salem, filed the petition.
Meagan Flynn, of Pozzi, Wilson, Atchison, Portland, argued the cause for respondent on review.
Before Carson, Chief Justice, Gillette, Van Hoomissen, and Durham, Justices.**
GILLETTE, 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 of an Order of the Workers' Compensation Board. 146 Or App 50, 931 P2d 823 (1997).
**Fadeley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998, and did not participate in this decision; Kulongoski, J., did not participate in the consideration or decision of this case.
GILLETTE, J.
In this workers' compensation case, the issue is
whether claimant, a sole proprietor, submitted sufficient
evidence to corroborate her claim of compensability for an
occupational disease, thereby permitting recovery under ORS
656.128(3).(1)
The Workers' Compensation Board (Board) concluded
that a doctor's report, based on a history provided by claimant,
was insufficient and upheld the insurer's denial of the claim.
The claimant appealed, and a divided Court of Appeals, sitting en
banc, reversed, holding that a doctor's opinion as to diagnosis,
causation, and treatment is, by its very nature, based on more
than a patient's statements and, therefore, corroborates the
components of proof of compensability. Marshall v. SAIF Corp.,
146 Or App 50, 931 P2d 823 (1997) (Marshall II). We allowed the
insurer's petition for review to consider the quantity and
quality of corroborative evidence that must appear in the record
to satisfy the requirements of ORS 656.128(3). We now affirm the
decision of the Court of Appeals, but on different grounds.
The facts of the case that are pertinent to the issue
before the court are undisputed. Claimant has been a hairdresser
for 35 years. For approximately the past 20 years, she has been
the sole proprietor of her own salon. She elected workers'
compensation coverage for herself with SAIF Corporation (SAIF)
under ORS 656.128.
In 1991, claimant began to notice pain in her right
hand and arm. The symptoms gradually worsened and, by January
1992, the pain had radiated up through her wrist and elbow into
her shoulder. In February 1992, claimant consulted a physician,
Dr. Rabie, who diagnosed tendinitis and capsulitis in her right
index finger, thumb, elbow, and shoulder. Based on claimant's
account of her condition, Rabie concluded that the problem was
the result of her repetitious hand and arm movements at work, and
instructed her to limit her work to four hours per day.
In April 1992, claimant submitted a workers'
compensation claim for tendinitis in her right thumb, finger,
elbow, and shoulder. SAIF denied the claim on the ground that
claimant's work as a hairdresser was not the major contributing
cause of the development or worsening of her tendinitis.
Claimant requested a hearing and, before a Hearings Division
referee, presented her own testimony as to compensability, along
with Rabie's report diagnosing tendinitis and concluding, based
on information that claimant had provided to him, that claimant's
condition resulted from her work activities.
After the hearing, SAIF submitted a trial memorandum to
the referee in which it contended that, in addition to its other
reasons for denying claimant's claim, the claim should be denied
because claimant failed to sustain her burden of proof as a sole
proprietor under ORS 656.128(3).(2) SAIF argued that, because the
only evidence that claimant offered at the hearing to support the
claim that the condition was work-related was claimant's own
testimony and the doctor's report (which, itself, was based on
claimant's own recitation of her history), claimant had failed to
submit corroborative evidence "in addition to" her own evidence.
In response, claimant argued, among other things, that
ORS 656.128(3) requires sole proprietors to submit evidence
corroborating only the fact of coverage under the workers'
compensation statute (which is not in dispute in this case), not
compensability under that law. The referee accepted that
interpretation and concluded that claimant had proved that she
was eligible for workers' compensation coverage as a self-employed worker.
Turning to the merits of claimant's claim, the
referee found that claimant's work required fast, repetitive use
of her hands and arms, that she performed no repetitive
activities with her hands off-work, and that claimant's work
activity as a hairdresser was the major contributing cause of her
condition. He concluded that claimant had met her burden of
proof. SAIF requested review. The Board affirmed and adopted
the referee's order.
SAIF sought judicial review in the Court of Appeals.
That court reversed the Board on the issue of the proper
interpretation of ORS 656.128(3), holding that "the corroboration
requirement pertains to facts essential to the allowance or
payment of claims for compensation, i.e., compensability," rather
than to coverage. SAIF Corp. v. Marshall, 130 Or App 507, 510,
882 P2d 1115, rev den 320 Or 492, 887 P2d 793 (1994) (Marshall
I). It remanded the case to the Board for reconsideration.
On remand, claimant asserted that her consistent
medical histories, provided to her own doctor and to the
physicians who examined her on behalf of SAIF, as well as her
consistent statement to SAIF's investigator, constituted
sufficient corroborative evidence to satisfy the requirements of
ORS 656.128(3).(3)
In its order on remand, the Board held that the
corroborative evidence required by the statute "must be
supplementary to and of a different character from claimant's
evidence." On the facts of the present case, the Board concluded
that neither the physicians' reports nor claimant's statement to
the investigator constituted "corroborative evidence in addition
to the evidence of the claimant," inasmuch as they were not
supplementary to or different in character from her own
testimony. According to the Board, the medical reports
corroborated the existence of claimant's medical condition, but
they did not corroborate the cause of that condition.
Consequently, it reinstated and upheld SAIF's denial of
claimant's claim.(4)
Claimant again sought judicial review in the Court of
Appeals, this time assigning error to the Board's conclusion that
Rabie's medical report did not constitute corroborative evidence
of compensability and, alternatively, to the Board's refusal to
remand the case to the referee to allow claimant to present
additional corroborative evidence. The Court of Appeals reversed
the Board on the first issue and, therefore, did not reach the
second.
In its opinion, the Court of Appeals began by analyzing
the wording of ORS 656.128(3), using the methodology prescribed
by this court in PGE v. Bureau of Labor and Industries, 317 Or
606, 610-12, 859 P2d 1143 (1993). It looked at the text of the
statute and construed words of common usage according to their
plain, natural, and ordinary meaning. Marshall II, 146 Or App at
53. The court noted that the word "corroborative" is not defined
in the statute but that, according to Webster's Third New World
Dictionary, 512 (1971), "corroborative" means "tending to make
more certain." Marshall II, 146 Or App at 53. The court also
noted that Black's Law Dictionary, 414 (rev 4th ed 1968) defines
"corroborating evidence" as "[e]vidence supplementary to that
already given and tending to strengthen or confirm it; additional
evidence of a different character to the same point." Based on
those dictionary definitions, the court concluded that "any
evidence that makes more certain either the 'arising out of' or
'in the course of' prong of compensability is corroborative."
Id. at 53-54 (emphasis in original).(5)
The Court of Appeals assumed, for the sake of
discussion, that the phrase "evidence of the claimant" in ORS
656.128(3) means claimant's own statements and then rejected
SAIF's argument that the medical reports are not in addition to
claimant's statements. Id. at 54. The court stated that,
although the doctor relied on the patient's history to formulate
a medical opinion, the opinion was his own, based collectively on
the patient's history, a physical examination, and the doctor's
own expertise. Ibid. The court held that,
"[n]ot only are the medical reports 'in addition to'
claimant's statements, they do, in fact, corroborate
compensability. They show that the claimant described
to her doctor the same employment conditions that she
had reported on her claim and to which she testified.
The doctor's opinion attributes claimant's injury and
need for treatment to the employment conditions
claimant described. The reports accordingly corroborate
both the 'arising out of' and 'in the course of'
components of proof of compensability, ORS 656.005(7),
and satisfy the requirement of ORS 656.128(3), because
they make more certain the compensability of the
claim."
Ibid.
On review, we need not address the correctness of the
Court of Appeals' reasoning regarding the sufficiency of the
medical reports, because, for the following reasons, we conclude
that sufficient corroborative evidence is present in this case to
support the claim.
At the outset, we note that claimant's tendinitis is
compensable, if at all, as an "occupational disease" under ORS
656.802(1)(a)(C). That section defines an occupational disease
as a "series of traumatic events or occurrences which requires
medical services or results in physical disability," that
"arise[s] out of and in the course of employment caused by * * *
activities to which an employee is not ordinarily subjected or
exposed other than during a period of regular actual employment."
Employment conditions must be "the major contributing cause of
the disease." ORS 656.802(2)(a).
Claimant has the burden of proving, by a preponderance
of the evidence, that the occupational disease is compensable.
ORS 656.266; Hutcheson v. Weyerhaeuser, 288 Or 51, 55-56, 602 P2d
268 (1979). In the ordinary case, where the claimant is an
employee of a covered employer, the claimant can make out a prima
facie case of compensability with her own testimony, so long as
it is credible, together with "medical evidence supported by
objective findings" establishing the existence of an occupational
disease. ORS 656.802(2)(d). Where, as here, the claimant is a
sole proprietor, however, she carries an additional burden. ORS
656.128(3) provides:
"[n]o claim shall be allowed or paid under this section
[permitting sole proprietors to elect workers'
compensation coverage], except upon corroborative
evidence in addition to the evidence of the claimant."
The statute requires the claimant to produce
corroborative evidence in addition to the "evidence of the
claimant." (Emphasis added.) However, as the Court of Appeals
recognized, the statute does not define the phrases
"corroborative evidence" or "evidence of the claimant," nor does
it specify what, exactly, must be corroborated. As did the Court
of Appeals, we attempt to discern the intent of the legislature
using the methodology set out in PGE v. Bureau of Labor and
Industries, 317 Or at 610-612. At the first level of our
analysis, we look at the text and context of the statutory
section itself. Id. at 610-611.
It is clear that the legislature could not have
intended the phrase "evidence of the claimant" to mean all the
evidence a claimant presents at a workers' compensation hearing,
for that would lead to the absurd result that no claimant could
ever meet the burden because any evidence offered as
corroboration would, itself, be "evidence of the claimant." At
the same time, the statute does not require merely that a
claimant's testimony be corroborated by other evidence. The
text, therefore, suggests that something more is required and
appears to reflect a heightened legislative concern over a
claimant's credibility. It is evident from the wording in ORS
656.128(3), that the purpose of the statute is to prevent fraud;
that is, to prevent a sole proprietor from falsely claiming
workers' compensation coverage for any injury or occupational
disease that is not compensable. We conclude, therefore, that it
is a claimant's statements, in or outside of a legal proceeding,
that must be corroborated under ORS 656.128(3).
Turning to "corroborative evidence," we agree with the
Court of Appeals' definition of that phrase, as "evidence,
different from the evidence of the claimant, that tends to make
more certain the compensability of the claim." Marshall II, 146
Or App at 53. We have defined corroboration or corroborative
evidence similarly in other contexts in our decisions over the
years. For example, in Farmers Insurance Exch. v. Colton, 264 Or
210, 217, 504 P2d 1041 (1972), quoting 2 E. Conrad, Modern Trial
Evidence § 1155 (1956), we held that "corroboration" is
"'something which leads an impartial and reasonable mind to
believe that material testimony is true, testimony of some
substantial fact or circumstance independent of a statement of a
witness.'" Nothing in the statutory context of ORS 656.128(3)
points to a different interpretation. Therefore, we hold that
the corroborative evidence required in ORS 656.128(3) must be
independent of and apart from claimant's own statements.
The remaining question, then, is what, exactly, a sole
proprietor must corroborate. As the Court of Appeals held in
Marshall I, the wording of the statute requires the claimant to
corroborate compensability. To be compensable, an injury or
occupational disease must arise out of and in the course of
employment. ORS 656.005(7)(a); ORS 656.802(1)(a). In the case
of an occupational disease, there is the additional requirement
that the employment conditions were the major contributing cause
of the disease. ORS 656.802(2)(a). We have held, in the context
of an accidental injury, that the "arising out of" prong and the
"in the course of" prong are "two parts of a single 'work-connection' analysis, in order to determine whether an employee
suffered a compensable injury." Krushwitz v. McDonald's
Restaurants, 323 Or 520, 526, 919 P2d 465 (1996); Norpac Foods,
Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994) ("'arising
out of' and 'in the course of' are two elements of a single
inquiry"). Likewise, the requirement that employment conditions
be the major contributing cause of an occupational disease is
part of that "work-connection" analysis.
To corroborate compensability, then, a sole proprietor
must provide not only corroborative evidence of the existence of
the injury or disease, but also corroborative evidence that the
injury or occupational disease is work-related. The evidence is
"corroborative" if it supplements, strengthens, and confirms the
testimony of the claimant and tends to verify her version of the
facts. Nothing in ORS 656.128(3), however, requires the claimant
establish a prima facie case with corroborative evidence. We
hold that a sole proprietor satisfies the corroboration
requirement of ORS 656.128(3) if she provides any evidence,
independent of and apart from her own statements, that
supplements, strengthens, and confirms that the injury or disease
exists and that it is work-related. We thus find the statute's
meaning to be clear at the first level of inquiry, and need not
inquire further. PGE v. Bureau of Labor and Industries, 317 Or
at 611.
At the hearing before the Board, claimant provided
corroborative evidence of the existence of her tendinitis in the
form of Rabie's medical report. It is true that even the
doctor's medical conclusions are based, in part, on claimant's
complaints of pain in her hand, arm, and shoulder. Yet, the
doctor's own examination, expertise, and diagnosis are necessary
to confirm that the disease of tendinitis exists. That
additional "evidence" provides sufficient corroboration of
claimant's claim in that regard.
Finally, we consider whether the doctor's report
corroborated claimant's assertion that the tendinitis is work-related. We hold that it did, under the peculiar facts presented
here. There are a few kinds of employment that are so familiar
to the ordinary person that no further proof of specific physical
activities by a claimant on the job is required. We believe that
the work of a hairdresser fits within such a class. Most persons
have observed hairdressing first hand and, even for those who
have not, they almost surely are aware that the work requires
rapid and repetitious hand and arm movements. The doctor should
be deemed to have been aware of that fact independent of
claimant's history. Thus, in this case, the necessary
corroboration was present.
SAIF argues that claimant separately must corroborate
the fact that her work was the major contributing cause of her
disease. The effect of that argument in the present case would
be to require claimant to submit corroborative evidence of a
negative, viz., of the fact that she did not carry on activities
off the job that involved rapid and repetitious hand and arm
movements of the kind that could have caused her tendinitis. We
hold, however, that claimant satisfied that requirement of ORS
656.128(3) by providing evidence corroborating the job-related
nature of her claim. That, coupled with her denial of similar
physical activity off the job, made out her prima facie case.
It follows from the foregoing that, although we
disagree with portions of the analysis of the Court of Appeals in
this case, we do agree with its conclusion.
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 656.128(3) provides:
"No claim shall be allowed or paid under this
section, except upon corroborative evidence in addition
to the evidence of the claimant."
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2. SAIF also had raised the general issue of the
applicability of ORS 656.128(3) orally at the hearing.
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3. Claimant also asked the Board to remand the case to the
referee for the presentation of additional corroborative
evidence, should the Board find her corroboration argument
unpersuasive.
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4. The Board refused to remand the case to the referee to allow claimant to offer additional evidence.
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5. Although not discussed in the Court of Appeals' opinion, the reference to the "'arising out of' or 'in the course of' prong" is a reference to the workers' compensation statute that defines a compensable injury or occupational disease as one "arising out of and in the course of employment." ORS 656.005(7)(a); ORS 656.802(1)(a). See, e.g., Krushwitz v. McDonald's Restaurants, 323 Or 520, 526, 919 P2d 465 (1996) (explaining that the "arising out of" and "in the course of" requirements of the statute are two parts, or "prongs," of a single, unitary, test).
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