In the Matter of the Compensation of William H. Lodge, Claimant. NAES CORPORATION, Petitioner, υ. SCI 3.2, INC. and William H. Lodge, Respondents.
Workers’ Compensation Board 1504600, 1502155; A165158
Court of Appeals of Oregon
Argued and submitted September 28, 2018, affirmed April 29, 2020
petition for review denied August 27, 2020 (366 Or 826)
303 Or App 684; 465 P3d 246
Employer, NAES Corporation, seeks judicial review of an order of the Workers’ Compensation Board holding it responsible for claimant‘s hearing loss instead of claimant‘s most recent employer, SCI 3.2, Inc., under the last injurious exposure rule (LIER). NAES argues that, because the testifying experts allowed for the possibility that claimant‘s work at SCI contributed to his hearing loss, the board erred in shifting responsibility for claimant‘s occupational disease from SCI to NAES under the LIER. NAES also argues that the board‘s decision was not supported by substantial evidence or reason. SCI responds that the board properly applied the LIER in its order and that its decision was supported by substantial evidence and reason. Held: The board did not err. The board correctly applied the LIER and substantial evidence and reason supported its conclusion that claimant‘s employment prior to SCI was the sole cause of claimant‘s hearing loss.
Affirmed.
Rebecca A. Watkins argued the cause for petitioner. Also on the briefs was Sather, Byerly & Holloway, LLP.
Trisha D. Hole argued the cause and filed the brief for respondent SCI 3.2, Inc.
No appearance for respondent William H. Lodge.
Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.*
DeHOOG, P. J.
Affirmed.
* Egan, C. J., vice Hadlock, J. pro tempore.
Petitioner, employer NAES Corporation (NAES), seeks judicial review of an order of the Workers’ Compensation Board holding it responsible for claimant‘s hearing loss under the last injurious exposure rule (LIER). In its first assignment of error, NAES contends that the board erred in concluding that claimant‘s most recent employer, respondent SCI 3.2, Inc. (SCI), had successfully shifted responsibility for claimant‘s occupational disease to NAES by proving, to a reasonable medical probability, that claimant‘s prior employment
We summarize the facts as found by the board, noting those disputed by NAES.
for SCI and worked in that capacity from 2013 through 2016. While employed by SCI, claimant fabricated floats for the Rose Festival Parade, at various times engaging in tasks such as sawing, welding, grinding, and hammering.
In 2014, Dr. Lipman, an ear, nose, and throat specialist, diagnosed claimant with bilateral, noise-induced hearing loss. Claimant subsequently filed an occupational disease claim for that condition with both NAES and SCI. Although neither employer disputed the compensability of claimant‘s condition, both employers issued denials of responsibility. Claimant later submitted to an examination by Dr. Hodgson at NAES‘s request. A third doctor, Wilson, reviewed claimant‘s medical records at SCI‘s request. As the board explained in its order, Lipman concluded that, to a reasonable medical probability, claimant‘s work as a boilermaker had been the sole cause of his hearing loss and claimant‘s work for SCI had not contributed to that condition. The board further explained that, “[b]ased on certain assumptions regarding the nature of claimant‘s work and his use of hearing protection that were supported by claimant‘s testimony, Dr. Hodgson opined that it was medically probable, but not certain, that the occupational component of the hearing loss occurred before claimant began working for [SCI].” Finally, after noting Wilson‘s acknowledgement that he had “insufficient information to be certain,” the board explained that he had nonetheless concluded that “‘it was medically probable that all of the occupational exposure occurred [before claimant worked for SCI].‘” NAES disputes the board‘s characterization of each doctor‘s opinion in ways that are not material to our disposition, but there is no dispute that the board relied on those medical opinions as the basis of its order.3
The board first determined that, as the last employer that could have caused claimant‘s
NAES challenges both the board‘s legal conclusion that it is responsible for claimant‘s occupational disease claim and the factual sufficiency of the record to support that conclusion. We review the board‘s legal conclusions for errors of law and its factual findings for substantial evidence in the record. SAIF v. Harrison, 299 Or App 104, 105, 448 P3d 662 (2019) (citing
(describing the LIER, in part, as assigning responsibility for a worker‘s compensable condition to the “last employer that could have caused the claimant‘s injury“). Our focus, therefore, is on whether SCI met its burden under the LIER, permitting it to shift responsibility for claimant‘s hearing loss back to NAES as claimant‘s previous employer. See id. at 313 (application of the LIER establishes “a prima facie case against the last employer,” which may be rebutted or shifted by that employer).
On judicial review, NAES raises three assignments of error, each challenging the board‘s determination that SCI successfully shifted responsibility for claimant‘s occupational disease to NAES. However, we discuss only the merits of NAES‘s first and third assignments, which assert (1) that the board “applied an erroneous legal standard under [the] LIER when it focused on probability[,] not possibility[,] of contribution,” and (2) that the board‘s determination that claimant‘s prior work conditions were the sole cause of his hearing loss is not supported by substantial evidence and reason.4 We address each assignment in turn.
As we understand NAES‘s briefing of its first assignment of error, its argument has
never shift responsibility to an earlier employer if there is any possibility that the claimant‘s work for the later-in-time employer made even a slight contribution to the claimant‘s occupational disease. NAES argues that, because proving that it was probable that claimant‘s work at SCI had not contributed to his hearing loss does not foreclose the possibility that it did, the board erred in relying on a reasonable-medical-probability standard.
However, to the extent that NAES argues that SCI was required to establish either Roseburg Forest Products prong by more than a reasonable medical probability, we recently reached the opposite conclusion in Liberty Metal Fabricators v. Lynch Co., 295 Or App 809, 813, 435 P3d 810 (2019), adh‘d to as modified on recons, 302 Or App 110, 456 P3d 691 (2020) (stating, in LIER case, that “evidence offered in terms of reasonable medical probability would suffice to establish that it was not possible for [the employment in question] to have caused claimant‘s hearing loss“); see also id. at 812 (“The standard of proof in this [LIER] case is a preponderance of the evidence.“). Thus, the board did not err in basing its decision on evidence satisfying only a “reasonable medical probability” standard of proof.
NAES‘s second argument under its first assignment of error is somewhat more nuanced. NAES seemingly acknowledges that, as the board reasoned in its order, a presumptively responsible employer can shift responsibility to another employer in either of two ways. Indeed, NAES expressly states that an employer can shift responsibility by “show[ing] [that] it was impossible for its [work] conditions to have caused a worker‘s disease or that the disease was caused solely by conditions at one or more previous employments.” (Emphasis added.) See Roseburg Forest Products, 325 Or at 313; see also Beneficiaries of Strametz v. Spectrum Motorwerks, Inc., 325 Or 439, 444, 939 P2d 617 (1997) (LIER cannot impose liability on an employer whose working conditions were not the actual cause of a worker‘s occupational disease, even if those conditions were theoretically capable of causing the disease). Consistent with that understanding, NAES further suggests that its position is not that “sole cause” and “impossibility” are identical standards.
NAES proceeds to argue, however, that the two prongs of the Roseburg Forest Products shifting analysis are “two sides of the same standard.” Citing a previous board opinion, NAES contends that, in that case, the “sole cause” prong “was not satisfied because the expert [there] allowed for the possibility of contribution from the presumptively-responsible employer.” (Emphasis added.) In NAES‘s view, the board‘s decision in this case suffers from the same infirmity. NAES reasons that, although the board found that claimant‘s work conditions for NAES had been the sole cause of claimant‘s hearing loss, “sole cause” was not, in fact, established, because there remained at least some possibility that claimant‘s employment by SCI had contributed to that condition. As NAES puts it, both the “impossibility” prong and the “sole cause” prong “have an exclusionary character. Once another employment period contributes, even to a minor and unmeasurable degree, a sole cause has not been established.”
The difficulty with that argument is not that, on its face, it is an entirely incorrect statement of the law.5 We agree that, as NAES notes, there is somewhat of a “two sides of the same coin” quality to the Roseburg Forest Products analysis. Thus, if the evidence compelled a finding that claimant‘s work for SCI had some causal relationship—
The first flaw in NAES‘s reasoning is that it conflates actual contribution from SCI‘s working conditions with the mere possibility of such a contribution; only actual contribution is necessarily inconsistent with a finding that claimant‘s previous employment was the sole cause of his hearing loss. Because, at most, the evidence before the board left open a possibility that the working conditions at SCI
had contributed to claimant‘s condition, that inconsistency is not present here.
The second flaw in NAES‘s approach is that, in its challenge to the board‘s application of a “medical probability” standard, NAES blurs the distinction that the board correctly recognized between the two prongs of the Roseburg Forest Products analysis. NAES argues that the board “inappropriately watered down the impossibility and sole cause standards by focusing instead on medical probability.” In essence, NAES‘s argument is that, so long as there is any possibility that employment with SCI caused claimant‘s hearing loss—a possibility ostensibly left open by the board‘s finding that SCI had not satisfied the “impossibility” prong—then claimant‘s work for NAES cannot be deemed the “sole cause” of his condition. Simply put, in NAES‘s view, if one cause remains possible, then another cause cannot be considered the “sole” cause.
Again finding guidance in our recent decision in Liberty Metal Fabricators, we reject that view. In Liberty Metal Fabricators, which we decided after this case was submitted, the ultimate issue was, like here, which of two employers was responsible for a claimant‘s hearing loss. 295 Or App at 811. Unlike here, however, the board in Liberty Metal Fabricators had expressly determined that the claimant‘s work for the presumptively responsible employer could not possibly have caused his compensable hearing loss. Id. at 812. As noted above, 303 Or App at 689, in that case we ultimately rejected the petitioner‘s contention that the board had erred in applying a “medical probability” standard to that determination. Liberty Metal Fabricators, 295 Or App at 813; see also id. at 813 n 1 (noting that the preponderance standard applies unless otherwise provided by statute in the workers’ compensation framework).
After reaching that conclusion, we proceeded to consider whether, in light of an expert‘s testimony that it was theoretically possible that the claimant‘s work for his most recent employer had caused him a hearing loss too small to measure, the board had erred when it determined that the employer had satisfied the “impossibility” prong under
Roseburg Forest Products. Id. at 813. In concluding that the board had not erred, we explained:
“Proof of literal impossibility is not what the case law requires. Although literal impossibility would certainly suffice to shift responsibility to a previous employer, a presumptively responsible employer may also shift responsibility for an occupational disease to a prior employer by showing that the disease was caused or worsened by conditions solely at one or more previous employments. Roseburg Forest Products, 325 Or at 308.”
Id. at 813-14 (emphases added). Through that explanation, we implicitly stated what the board expressly stated in this case, namely: (1) the two prongs under the Roseburg Forest Products analysis provide independent bases for shifting claim responsibility; and (2) even if the evidence does not support a finding that it was impossible for a claimant‘s work for the presumptively responsible employer to have contributed to his or her occupational disease, that same evidence may nonetheless support the finding that the claimant‘s previous employment was the sole cause of that condition. Thus, as applicable here, SCI was not required to prove that conditions at its workplace could not possibly have caused claimant‘s hearing loss in order for it to shift responsibility for the resulting claim to NAES. Accordingly, we reject NAES‘s first assignment of error.
medical evidence if it is supported by substantial evidence. See Liberty Metal Fabricators, 295 Or App at 814.
In arguing that the board‘s order lacks substantial evidence and reason, NAES first characterizes the board‘s reasoning as “difficult to determine” and rehashes its legal argument that the sole-cause prong cannot be satisfied by evidence meeting only a “reasonable medical probability” standard. Then, turning to the board‘s assessment of the evidence, NAES argues that (1) the board‘s reliance on expert opinions “allow[ing] for [the] possibility of contribution from SCI” undercuts the board‘s sole-cause determination, and (2) evidence of SCI‘s lack of contribution “do[es] not equate to a proof of sole cause” on the part of claimant‘s previous employers. In a separate but related argument, NAES points to evidence that causes other than work contributed to claimant‘s hearing loss and questions whether, in light of that evidence, the Roseburg Forest Products analysis allows for a “sole cause” finding. Finally, citing Foster Wheeler Corp. v. Marble, 188 Or App 579, 584, 72 P3d 645 (2003), rev den, 336 Or 60 (2003), NAES argues that the board‘s discussion of the competing evidence was inadequate, because the board did not explain how expert testimony that allowed for the possibility that claimant‘s employment at SCI had contributed to his hearing loss was consistent with its determination that his previous employment had been the sole cause of that condition.
We conclude that substantial evidence and reason support the board‘s determination that claimant‘s prior employment as a boilermaker, including his time with NAES, was the sole cause of his hearing loss. As noted, 303 Or App at 686, the board‘s order described much of the evidence that the parties had presented and explained its assessment of it. For example, the board summarized each of the three medical opinions in the record. As the board explained: (1) Lipman had concluded that “claimant‘s work as a boilermaker was the sole cause of claimant‘s hearing loss“; (2) Hodgson had concluded that “claimant‘s occupational noise exposure as a boilermaker was the major contributing cause, and the sole occupational cause,” of his condition; and (3) Wilson, in his own terms, had concluded that
“it was medically probable that all of the occupational exposure occurred prior to [claimant‘s] employment” with SCI. (Brackets in the board‘s order.)
With respect to its determination that claimant‘s work for SCI had not contributed to his hearing loss, the board again pointed to that expert testimony. For example, the board noted Lipman‘s opinion (based, in part, on claimant‘s testimony at the hearing) “that claimant‘s work for [SCI] did not contribute to the hearing loss.”6 The board also cited Hodgson, who, having been given the same details about claimant‘s work and his use of hearing protection, had opined that “it is medically probable, not certain, but medically probable, more probable than not, that the occupational component of his hearing loss occurred prior to 2013.” Finally, the board cited Wilson‘s opinion to substantially the same effect.
In light of that evidence and the board‘s explanation of its significance in its order, we reject each of NAES‘s arguments in support of its third assignment of error. First,
as explained above, the impossibility and sole-cause prongs under Roseburg Forest Products are independent. 303 Or App at 692. As a result, there is no inconsistency in determining that claimant‘s work for NAES had been the sole cause of claimant‘s condition despite the board‘s concurrent determination that SCI had not eliminated all possibility that its working conditions had contributed to his hearing loss.
Second, to the extent that NAES argues otherwise, it was appropriate for the board to consider expert testimony that claimant‘s work for SCI was unlikely to have contributed to his hearing loss in determining that his prior employment as a boilermaker had been its sole cause. As we understand NAES‘s lack-of-contribution-does-not-equal-sole-cause argument, it is that evidence related to claimant‘s work for SCI is relevant only to the impossibility prong, which the board determined had not been established. NAES does not persuasively explain, however, why the mere fact that evidence is relevant to prove one prong renders it irrelevant to prove the other prong.
In our view, evidence relevant to show that claimant‘s work for SCI, an otherwise potential cause of his hearing loss, was unlikely to have actually played that causal role is equally relevant to prove that something else, including claimant‘s work for NAES, did play that role. Even if, standing alone, that evidence might be insufficient to support the finding that claimant‘s previous employment had been the sole cause of his condition, there is no reason that it could not provide evidentiary support for that finding. Cf.
Here, because the board had ample affirmative evidence that claimant‘s work as a boilermaker was the likely cause of his hearing loss—evidence that NAES does not dispute—its reliance on evidence that claimant‘s work at SCI was unlikely to have contributed to that loss in no way deprives the board‘s ultimate conclusion of substantial
evidence or reason.8 See Wiggins v. SAIF, 300 Or App 319, 324, 453 P3d 603 (2019) (the board‘s determination “is supported by substantial evidence if the record, viewed as a whole, would permit a reasonable person to make the finding” (internal quotation marks and brackets omitted)).
NAES‘s third substantial-evidence argument is similarly unpersuasive. NAES contends that, because the board did not expressly consider potential other, nonwork causes of claimant‘s hearing loss, its sole-cause determination is not supported by substantial evidence. We disagree. The issue before the board was not whether any aspect of
Finally, we reject NAES‘s suggestion that, under Foster Wheeler Corp., 188 Or App at 584, the board‘s order lacks substantial reason because it was based on conflicting evidence and the board did not adequately explain its resolution of that conflict. According to NAES, the board was required to explain why, in determining that claimant‘s prior employment had been the sole cause of his occupational disease, it had disregarded expert testimony that allowed for the possibility that claimant‘s employment at SCI had contributed to his hearing loss. Again, we disagree.
The premise of NAES‘s argument appears to be that the medical experts in this case testified in a manner that was either internally inconsistent or inconsistent with the testimony of each other, requiring the board to explain how it chose what testimony to accept. See, e.g., SAIF v. January, 166 Or App 620, 626, 998 P2d 1286 (2000) (board
erred when it neither acknowledged nor reconciled inconsistencies between two opinions offered by the same medical expert, then failed to explain why it found one opinion more persuasive than the other). Here, however, there were no inconsistencies for the board to explain.
For one thing, no expert opined that it was not medically probable that claimant‘s prior employment had been the sole cause of his hearing loss. Thus, the board‘s sole-cause determination did not implicitly reject any conflicting evidence or, for that reason, require further explanation. Cf. Harrison, 299 Or App at 114-15 (although expert‘s opinion appeared to rely on conflicting accounts of how the claimant‘s workplace injury occurred, opinion itself was not inconsistent and board was not required to provide lengthy, in-depth explanation of its reliance on opinion).
For another thing, even viewing Hodgson‘s and Wilson‘s testimony—in which they acknowledged that they could not say for certain that claimant‘s work for SCI had played no role in his condition—as affirmative evidence that a causal relationship was possible, that still would not create a conflict under the LIER. That is, as we have just explained, the two prongs under Roseburg Forest Products are independent bases on which a presumptively responsible employer can shift liability to an earlier employer. 303 Or App at 692. Thus, there is no material inconsistency between, on the one hand, testimony that it was possible that claimant‘s work for SCI had contributed to his hearing loss and, on the other hand, the board‘s ultimate determination that, to a reasonable medical probability, claimant‘s prior employment had been its sole cause. See id.; Liberty Metal Fabricators, 295 Or App at 814.
Contrary to NAES‘s suggestion, Foster Wheeler Corp. has no bearing on this case. There, we held that evidence that the claimant‘s work for the presumptively responsible employer could have caused his occupational disease provided support for the board‘s finding that the claimant‘s previous employment had not been its sole cause.9 Foster
Wheeler Corp., 188 Or App at 584. As a result, the board had not erred when it determined that the employer had failed to satisfy either of the Roseburg Forest Products prongs. Id. We did not, however, suggest that the evidence compelled the board‘s finding that the claimant‘s previous employment had not been the sole cause of his condition, or that that evidence was necessarily inconsistent with a finding that the
Consequently, neither Foster Wheeler Corp., nor any other authority identified by NAES, required the board to further explain its reliance on the experts’ sole-cause testimony or how that evidence led to the board‘s ultimate legal conclusion. Therefore, the board‘s order did not lack substantial reason.
The board properly applied the LIER in determining that SCI had successfully shifted responsibility for claimant‘s compensable hearing loss to NAES because claimant‘s previous employment was the “sole cause” of that occupational disease. That decision was supported by substantial evidence and reason. Accordingly, we affirm.
Affirmed.