Martin v. City of Portland

37 P.3d 209, 178 Or. App. 505, 2001 Ore. App. LEXIS 1909
CourtCourt of Appeals of Oregon
DecidedDecember 26, 2001
Docket98-00466; A109341
StatusPublished
Cited by3 cases

This text of 37 P.3d 209 (Martin v. City of Portland) 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
Martin v. City of Portland, 37 P.3d 209, 178 Or. App. 505, 2001 Ore. App. LEXIS 1909 (Or. Ct. App. 2001).

Opinion

WOLLHEIM, J.

Claimant seeks judicial review of an order of the Workers’ Compensation Board holding that he had not carried his burden of proving that his work was the major contributing cause of his respiratory conditions. We review for substantial evidence and errors of law. ORS 183.482(8). Because the Board erroneously held that claimant’s evidence was insufficient under ORS 656.266 as a matter of law, we reverse and remand.

Claimant began working as a mechanic for the City of Portland (employer) in December 1993. Before starting that job, claimant had a history of childhood asthma. Besides a respiratory problem in the late 1970s that was apparently caused by chemical exposure, claimant’s respiratory health as an adult had been good until he began experiencing the respiratory conditions giving rise to this claim.

From 1993 to 1997 claimant worked the night shift as a mechanic at employer’s shop, doing maintenance and repair work on heavy equipment and vehicles. Workers at the shop were exposed to a variety of respiratory irritants, including exhaust fumes, dirt, dust, and various chemical compounds. Claimant and several coworkers testified that on a daily basis they saw dirty trucks come into the shop and fumes hanging in the air. At the end of shifts, claimant and his coworkers would often blow dark-colored mucous out of their noses. Claimant’s coworkers also said they saw claimant on several occasions suffering from red, swollen, and watering eyes. One coworker, Arthur, stated that after one such occasion he made a point to visit claimant on the following days out of concern for claimant’s health. Arthur next saw claimant at the beginning of claimant’s work shift. When asked how he was feeling, claimant responded that he was not feeling too bad. When Arthur checked on claimant one hour later, claimant had red, puffy eyes and was sweating profusely.

In March 1994 and in April and May 1996, claimant sought medical services for nasal congestion and respiratory [508]*508infection, respectively. In December 1996, claimant’s respiratory conditions began to worsen, and in March 1997, claimant again sought medical attention after experiencing three months of nasal discharge and coughing. Between March and August, claimant saw various doctors and had occasional improvement in his conditions, but they always returned. On August 11, 1997, one of claimant’s doctors, Dr. Chang, authorized claimant to take some time off work for “sinus infection, asthma.” Chang also started claimant on a steroid treatment.

Near the end of August, claimant returned to work. Subsequently, on August 27, 1997, Dr. Fuchs examined claimant. Claimant told Fuchs that in the two weeks he had been off work his conditions had markedly improved. However, claimant felt that symptoms were beginning to recur with his return to work, which also coincided with reduction in the steroid treatment. Fuchs opined that claimant’s work exposure was very likely exacerbating both his preexisting asthma and his nasal discharge. Fuchs recommended claimant change to a fume and dust-free working environment. On the same day, claimant was examined by another doctor who came to similar conclusions. Claimant filed his workers’ compensation claim the following day.

Thereafter, claimant continued to receive treatment for his respiratory conditions. In October 1997, claimant was evaluated by Dr. Browning and, at the request of employer, Dr. Montanero. Montanero concluded, and Browning concurred, that claimant had preexisting asthma that was symptomatically aggravated, but not pathologically worsened, by work exposure to fumes and dust. Thereafter, employer denied the claim.

After a hearing, the administrative law judge (ALJ) upheld employer’s denial. In reaching that conclusion, the ALJ evaluated the testimony of claimant and his coworkers:

“The testimony of claimant and his coworkers is * * * entirely subjective and based on an unquantified personal evaluation of relative personal sensitivity to the notions of ‘dusty and ‘dirty.’ There is no objective and persuasive evidence upon which to make a meaningful determination as [509]*509to the relative ‘dustiness’ or ‘dirtiness’ of the workplace as if it were anything other than a subjective experience.
“Having the extended testimony of three of the doctors to rely on, I learned through their testimony that the evaluation of the dirtiness of the workplace is of relatively little medical consequence. The issue is more of claimant’s sensitivity to certain irritant factors which may, or may not, be present in the workplace environment.”

The AU then summarized the doctors’ testimony and concluded:

“Having reviewed all of the medical reports and testimony, I am left with the impression that it is possible that the workplace exposures are the major contributing cause of claimant’s condition based on his response to withdrawal from the workplace, as Dr. Fuchs explains. However, that leaves me with the analysis that no one has been able to identify any other cause so it must be work related. That analysis is prohibited by ORS 656.266. Consequently, even though there is often á temporal connection between claimant’s symptoms and his days, or nights, closed up in the employer’s shop, that connection is not sufficiently strong medically that the employer should be required to pay workers’ compensation for the rhinitis and sinusitis conditions.”

The Board affirmed and adopted the AU’s order.

On judicial review, claimant challenges the Board’s decision on two grounds. In his first assignment of error, claimant argues that the Board committed legal error by rejecting the testimony of claimant and his coworkers regarding workplace cleanliness. According to claimant, the statement that “[t]here is no objective and persuasive evidence upon which to make a meaningful determination as to the relative ‘dustiness’ or ‘dirtiness’ of the workplace as if it were anything other than a subjective experience” indicates that the Board erroneously believed that subjective evidence could never be used to demonstrate workplace conditions. Employer concedes that the Workers’ Compensation Act does not require objective evidence of workplace exposures, but argues that the Board’s decision was not based on any legal distinction between subjective and objective evidence, but [510]*510instead simply on the persuasiveness of the evidence offered by claimant in this case.

Employer is correct. The Board did not require objective evidence of workplace cleanliness or of specific irritants. Rather, we read the Board’s statements to mean that objective evidence of workplace cleanliness or of specific irritants would have been more persuasive in demonstrating that claimant’s work was the major contributing cause of his conditions. Thus, the essence of the Board’s decision was not that claimant had failed to present objective evidence of workplace conditions and could not prevail as a matter of law, but that the Board was not persuaded by claimant’s evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
37 P.3d 209, 178 Or. App. 505, 2001 Ore. App. LEXIS 1909, Counsel Stack Legal Research, https://law.counselstack.com/opinion/martin-v-city-of-portland-orctapp-2001.