Kirby v. SAIF Corp.

162 P.3d 1063, 214 Or. App. 123, 2007 Ore. App. LEXIS 981
CourtCourt of Appeals of Oregon
DecidedJuly 11, 2007
Docket0503524; A132244
StatusPublished

This text of 162 P.3d 1063 (Kirby v. SAIF Corp.) 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
Kirby v. SAIF Corp., 162 P.3d 1063, 214 Or. App. 123, 2007 Ore. App. LEXIS 981 (Or. Ct. App. 2007).

Opinion

SCHUMAN, P. J.

The Workers’ Compensation Board (board) found that claimant’s work-related injury sustained while working for employer was not compensable because it was not the major contributing cause of his need for treatment; rather, an earlier, out-of-state, work-related injury was at least an equal cause. For that reason, the board affirmed employer’s denial of the claim. Claimant seeks review, arguing that, under the “last injury rule” or, alternatively, the statutory definition of a “compensable injury,” his injury is compensable and employer is responsible. We affirm the board’s order.

In 1999, claimant suffered an employment-related neck injury while working for an out-of-state employer, resulting in an accepted workers’ compensation claim and, in 2000, surgery. After a period of recovery, claimant was released to work in May 2001. Despite some continuing pain, apparently resulting from a disc bulge that was caused in part by his surgery, claimant did not need significant treatment for his neck until the present injury.

That injury occurred after claimant had been working for employer in Oregon for approximately four years, beginning in 2001. In March 2005, while working as a flagger and traffic controller, claimant was a passenger in a truck that was driven over a substantial bump while traveling 30 to 40 miles per hour. The impact caused severe and violent jolting movements, resulting in pain. Claimant filed a workers’ compensation claim. He sought medical treatment from his physician, Dr. Waller, who concluded that claimant’s need for treatment was caused equally by, on the one hand, the jolting incident, and, on the other hand, claimant’s earlier injury and treatment. An independent medical examination was conducted by Dr. Matteri, who concluded that claimant had a preexisting cervical condition including degenerative disc disease and residuals due to his 1999 injury and subsequent surgery. Matteri concluded that the jolting incident combined with the earlier injury and treatment to cause mild symptomatic exacerbation of claimant’s chronic neck and upper extremity symptoms. Ultimately, Matteri concluded [126]*126that the 1999 injury and treatment were the major contributing cause of claimant’s injury and that the 2005jolting incident was only a material contributing cause.

Employer thereafter denied the claim. An administrative law judge (ALJ) agreed with employer, and claimant appealed to the board. The board adopted and affirmed the decision of the ALJ, basing its decision on ORS 656.005(7)(a). Under that statute, a “compensable injury” is an accidental injury “arising out of and in the course of employment” but “subject to the following limitations”:

“(B) If an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause of the disability of the combined condition or the major contributing cause of the need for treatment of the combined condition.”

The board found that claimant’s 2005 injury combined with his 1999 injury and treatment, that the 2005 injury was not the major contributing cause of his current need for treatment, and that the 1999 injury and treatment amounted to a preexisting condition.

On judicial review, claimant does not dispute that his current need for treatment results from a so-called “combined condition,” nor that his 2005 injury is not the condition’s major contributing cause. Rather, he argues that the board erred in one of two respects. Primarily, he contends that compensability of his condition is governed not by ORS 656.005(7)(a)(B), but by the “last injury rule.” We have described that rule as follows:

“Where there are multiple accepted injuries involving the same body part, we will assume that the last injury contributed independently to the condition now requiring further medical services or resulting in additional disability, and the employer/insurer on the risk at the time of the most recent injury has the burden of proving that some other accepted injury last contributed independently to the condition which presently gives rise to the claim for compensation; e.g., that its accepted injury caused only symptoms [127]*127of the condition or involved a different condition affecting the same body part.”

Industrial Indemnity Co. v. Kearns, 70 Or App 583, 585-86, 690 P2d 1068 (1984) (internal quotation marks omitted). Alternatively, claimant contends that, even if ORS 656.005(7)(a)(B) governs this case, his condition is nonetheless compensable because his out-of-state injury and treatment do not amount to a “preexisting condition.” We disagree with both of claimant’s arguments.

The “last injury rule” (LIR) developed as a variation of the “last injurious exposure rule” (LIER). Boise Cascade Corp. v. Starbuck, 61 Or App 631, 659 P2d 424 (1983), aff'd, 296 Or 238, 675 P2d 1044 (1984). LIER generally applies to employment related diseases; LIR generally applies to employment related injuries. Id. The two rules differ in at least one respect that is significant in this case. LIER has two aspects: It is a

“ ‘rule of proof in that it can be used to establish that a claim is compensable by proving that the disease results from all of the claimant’s employment, including out-of-state jobs; [and] it is a ‘rule of responsibility’ in that it can be used to assign liability for that claim as between the claimant’s employers.”

SAIF v. Henwood, 176 Or App 431, 434, 31 P3d 1096 (2001), rev den, 333 Or 463 (2002). LIR, however, is not a rule of proof. Boise Cascade Corp., 61 Or App at 639-40. It does not allow a claimant to prove compensability merely by establishing that his or her current condition or need for treatment results from employment. Rather, it serves only as a rule of responsibility, presumptively assigning responsibility to the employer on the risk at the time of the last accepted injury that contributed independently to the claimant’s condition giving rise to the need for treatment. Kearns, 70 Or App at 585-86. Consequently, LIR does not aid claimant in establishing compensability.

Compensability in this case, as the board determined, is governed by ORS 656.005(7)(a) (defining “compensable injury”). In particular, the compensability of a combined condition claim such as this one is governed by ORS 656.005(7)(a)(B), set out above. The board reasoned that, under that statute, claimant’s 2005 injury, an “otherwise [128]*128compensable injury” because it arose out of and in the course of employment, was nonetheless not compensable because it combined with a preexisting condition and the preexisting condition, not the 2005 injury, was the major contributing cause of claimant’s need for treatment.

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Related

SAIF Corp. v. Drews
860 P.2d 254 (Oregon Supreme Court, 1993)
Industrial Indemnity Co. v. Kearns
690 P.2d 1068 (Court of Appeals of Oregon, 1984)
Boise Cascade Corp. v. Starbuck
675 P.2d 1044 (Oregon Supreme Court, 1984)
Matter of Compensation of Starbuck
659 P.2d 424 (Court of Appeals of Oregon, 1983)
SAIF Corp. v. Henwood
31 P.3d 1096 (Court of Appeals of Oregon, 2001)
Garoutte v. Mail-Well Corp.
115 P.3d 957 (Court of Appeals of Oregon, 2005)
Garoutte v. Mail Well Corp.
115 P.3d 957 (Court of Appeals of Oregon, 2005)

Cite This Page — Counsel Stack

Bluebook (online)
162 P.3d 1063, 214 Or. App. 123, 2007 Ore. App. LEXIS 981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kirby-v-saif-corp-orctapp-2007.