AIG Claim Services v. Rios

170 P.3d 1110, 215 Or. App. 615, 2007 Ore. App. LEXIS 1537
CourtCourt of Appeals of Oregon
DecidedOctober 31, 2007
Docket0408312,0405311, 0405310, 0403816, 0402803, 0402256, 0308153; A132821
StatusPublished
Cited by1 cases

This text of 170 P.3d 1110 (AIG Claim Services v. Rios) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
AIG Claim Services v. Rios, 170 P.3d 1110, 215 Or. App. 615, 2007 Ore. App. LEXIS 1537 (Or. Ct. App. 2007).

Opinion

LANDAU, P. J.

This is a workers’ compensation case in which the question is which of several insurance carriers is responsible for claimant’s compensable hearing loss. Under the last injurious exposure rule, the answer to that question is that responsibility is presumptively assigned to the insurer on the risk for the last period of employment during which the “onset of disability” occurred. In this case, the Workers’ Compensation Board assigned responsibility to AIG Claim Services (AIG), because it was employer’s insurance carrier at the time that claimant retired from his employment and filed his hearing loss claim. AIG seeks review, arguing that the board erred because the onset of disability actually occurred approximately ten years earlier. We affirm.

The relevant facts are not in dispute. Claimant worked for employer as a welder-fabricator from 1984 through 2001. Claimant was exposed to noise at work. In “1995 or so,” claimant went to “Miracle Ear,” a hearing aid retailer located in a Montgomery Ward department store, to purchase some custom-fitted ear plugs for work. An employee of Miracle Ear gave claimant a free hearing test and told him that he had hearing loss. The Miracle Ear employee also recommended that claimant purchase hearing aids. Claimant testified that the Miracle Ear employee demonstrated to him that the hearing aids would improve his hearing. Claimant, however, did not purchase the hearing aids. It is not known whether the Miracle Ear employee was either an audiologist or a licensed hearing aid specialist.

In 2001, claimant retired. In 2003, he sought treatment for hearing loss from Dr. Lindgren, who informed him that he had noise-induced hearing loss and prescribed hearing aids. Claimant filed a workers’ compensation claim. It is undisputed that claimant’s hearing loss was caused by his employment and that claimant did not lose time from work as a result of the hearing loss.

AIG was the insurer on the risk at the time claimant left his employment and when he filed his claim. Consequently, it was assigned presumptive liability for claimant’s [619]*619hearing loss under ORS 656.307. AIG disputed its responsibility, contending that responsibility should be assigned to the insurer who provided coverage for employer in 1995, when claimant received the hearing test from Miracle Ear. According to AIG, that was the onset of claimant’s disability.

The board upheld the assignment of responsibility to AIG, reasoning that, because claimant had not lost time from work as a result of his hearing loss, the pertinent event for determining the assignment of responsibility was the date that claimant first sought or obtained medical treatment for his hearing loss. Citing its order in Charles M. Spivey, 56 Van Natta 93 (2004), aff'd without opinion sub nom Liberty Northwest Ins. Corp. v. Spivey, 205 Or App 111, 132 P3d 1075 (2006), the board explained that, because there was no evidence of the tester’s licensing, claimant’s visit to Miracle Ear did not qualify as medical treatment. The board held that claimant first sought and obtained medical treatment from Lindgren in 2003.

On review, AIG contends that the board erred in concluding that claimant’s visit to Miracle Ear was not “medical treatment” that triggered responsibility for claimant’s hearing loss. In the alternative, AIG contends that the board erred in failing to consider evidence that claimant was suffering actual disability as a result of his hearing loss at the time he visited Miracle Ear.

When there is a dispute about which of several insurers is responsible for an occupational disease, initial or presumptive responsibility for the disease is assigned to the insurer during the last period of employment when conditions could have contributed to the claimant’s disability. Roseburg Forest Products v. Long, 325 Or 305, 314, 937 P2d 517 (1997). The triggering date for determining which insurer must provide coverage is the “onset of disability.” Bracke v. Baza’r, 293 Or 239, 248, 646 P2d 1330 (1982).

Typically, hearing loss claims do not involve time loss from work. For that reason, determining the “onset of disability” in the context of a hearing loss claim can be particularly challenging. In SAIF v. Carey, 63 Or App 68, 662 P2d 781 (1983), we said that when a worker does not lose time from work as a result of a claimed hearing loss, the date the [620]*620claimant first sought medical treatment is the critical date for determining responsibility. As we explained, “[t]he date when a claimant first sought medical treatment, at least in most cases, has some objective relationship to the date when the claimant’s condition became a disability, because it is usually documented.” Id. at 70. See also Timm v. Maley, 125 Or App 396, 401, 865 P2d 1315 (1993), rev den, 319 Or 81 (1994) (if a claimant receives treatment for a compensable condition before experiencing time loss, the date the claimant began to receive treatment is a triggering date for purposes of assigning responsibility).

In Agricomp Ins. v. Tapp, 169 Or App 208, 213, 7 P3d 764, rev den, 331 Or 244 (2000), we held that the date a claimant seeks or receives treatment both bear some objective relationship to the date of disability. Thus, we concluded, in the absence of time loss, the earlier of the two dates is the triggering date for the purpose of determining the “onset of disability.” See Liberty Northwest Ins. Corp. v. Gilliland, 198 Or App 84, 90, 107 P3d 687 (2005) (discussing cases).

We have, on several occasions, discussed what constitutes “seeking or receiving” medical treatment in the context of claims that do involve time loss. Our cases have addressed both the nature of the treatment and the qualifications of the treatment provider.

In Foster Wheeler Corp. v. Marble, 188 Or App 579, 582, 72 P3d 645, rev den, 336 Or 60 (2003), we said that “medical treatment” “involves either ongoing medical care or application of some technique, drug, or other action designed either to alleviate or cure a disease or injury.” In that case, we held that a claimant who had not received care after an audiogram that showed a loss of hearing had not received medical treatment. Id. at 583.

In Raytheon Constructors v. Tobola, 195 Or App 396, 97 P3d 1278 (2004), we held that an audiologist is a person authorized to provide medical treatment under the Workers’ Compensation Act and, further, that a recommendation to purchase hearing aids constitutes “treatment,” even if the claimant does not purchase the hearing aids.1 Id. at 401-02.

[621]*621In Gilliland, we explained that “seeking medical treatment” implies communicating with a medical professional who can provide the treatment, i.e., a person authorized to provide treatment under the workers’ compensation laws. 198 Or App at 91. We held that a medical clinic receptionist is not such a person. Id.

And, in SAIF v. Johnson, 198 Or App 504, 510, 108 P3d 662 (2005), we held that a licensed hearing aid specialist is a “person duly licensed to practice one or more of the healing arts” and therefore is authorized under the workers’ compensation laws to provide medical treatment.

In this case, claimant did not experience time loss in connection with his hearing loss.

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Cite This Page — Counsel Stack

Bluebook (online)
170 P.3d 1110, 215 Or. App. 615, 2007 Ore. App. LEXIS 1537, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aig-claim-services-v-rios-orctapp-2007.