Norstadt v. Murphy Plywood/Liberty Northwest Insurance

941 P.2d 1030, 148 Or. App. 484, 1997 Ore. App. LEXIS 771
CourtCourt of Appeals of Oregon
DecidedJune 18, 1997
Docket94-10782, 94-10781, 94-10773, 94-10774, 94-05124; CA A93457
StatusPublished
Cited by1 cases

This text of 941 P.2d 1030 (Norstadt v. Murphy Plywood/Liberty Northwest Insurance) 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
Norstadt v. Murphy Plywood/Liberty Northwest Insurance, 941 P.2d 1030, 148 Or. App. 484, 1997 Ore. App. LEXIS 771 (Or. Ct. App. 1997).

Opinion

LEESON, J.

Claimant seeks review of an order of the Workers’ Compensation Board determining that his bilateral hearing loss is compensable but that the loss is not the responsibility of any of the employers joined in this proceeding.1 We reverse and remand.

Claimant has had multiple employers over the years, most of whom were in the forest products industry. Claimant worked for Huffman & Wright cutting lumber from December 1985 to January 1986. Claimant first sought treatment for his compensable hearing loss in October 1986, while he was working for Douglas County Forest Products (DCFP), then insured by Lumbermen’s Underwriting Alliance (DCFP/ LUA). Claimant did not seek workers’ compensation benefits for his condition at that time, however, because he was not aware that the condition was work related. In subsequent years, claimant worked for many employers, including all of those listed as respondents to this petition. He had a second period of employment with DCFP, from October 16, 1991, to March 16, 1992, when DCFP was insured by Liberty Northwest (DCFP/LN.) All of the employers remaining as parties to this petition, see note 1, were insured by Liberty Northwest as their insurer at the relevant times, and when we refer to them collectively, we refer to them as the “Liberty employers.”

In 1993, claimant learned that his hearing loss was work related. He filed claims against each of his former employers. Substantial evidence supports the Board’s findings that the hearing loss is work related and that, under the last injurious exposure rule, presumptive responsibility for claimant’s hearing loss should rest with DCFP/LUA, because claimant first sought treatment for the condition while employed there in 1986. Timm v. Maley, 125 Or App 396, [488]*488400-01,865 P2d 1315 (1993). The Board found, however, that although claimant filed a claim against DCFP, “claimant apparently did not file a claim against [DCFP/LUA] and it was not a party to the hearing.” Therefore, claimant’s claim against DCFP related only to his second period of employment, when DCFP was insured by Liberty. The Board also found that claimant had waived his claim against DCFP/ LUA and “chose to pursue his claim” against his earlier and subsequent employers and was entitled to compensation only if the evidence established that responsibility could be shifted to a subsequent or preceding period of employment. Substantial evidence supports the Board’s findings that DCFP/LUA is not a party to this proceeding and that the earlier and later periods of employment with DCFP did not independently contribute to claimant’s condition.

The essence of claimant’s argument is that, having asserted his claim against DCFP, he has satisfied his statutory obligation with regard to his entire employment with that employer, including the period during which DCFP was insured by Lumbermen’s. Consequently, the question of which insurer must pay his benefits, Liberty or Lumbermen’s, is not his concern. The dissenting Board member agreed with claimant that the filing of a claim against DCFP satisfied claimant’s obligation with respect to each insurer of DCFP. As the dissenting Board member said:

“A claimant’s claim is with the employer, not with any particular carrier. A claimant is required to give notice of the occupational disease claim to the employer. See ORS 656.265; ORS 656.807.”

That view is consistent with the Supreme Court’s decision in Runft v. SAIF, 303 Or 493, 739 P2d 12 (1987). Relying on administrative rules of the Department of Consumer and Business Services (Department), the court held that when an insurer discovers that its insured and another employer are involved in an occupational disease claim that could have resulted from exposure at either or both places of employment, the insurer must join the other employer by a procedure that is equivalent to a claim against that later employer. The failure of the insurer in Runft to do so prevented it from [489]*489using the last injurious exposure rule to avoid responsibility for payment of a claim. Id. at 504.

The Department responded immediately to the Supreme Court’s opinion in Runft with new procedures and forms for insurers and employers to complete when other insurers or employers were believed to be involved in a claim. Then, in 1990, the legislature enacted what became codified as ORS 656.308(2), which provides:

“No employer or insurer shall be joined in any workers’ compensation proceeding unless the worker has first filed a timely written claim for benefits against that employer or insurer, or the employer or insurer has consented to the issuance of an order designating a paying agent under ORS 656.307. Any employer or insurer which intends to disclaim responsibility for a given injury or disease claim on the basis of an injury or exposure with another employer or insurer shall mail a written notice to the worker as to this position within 30 days of actual knowledge of being named orjoined in the claim. The notice shall specify which employer or insurer the disclaiming party believes is responsible for the injury or disease. The worker shall have 60 days from the date of mailing of the notice to file a claim with such other employer or insurer. Any employer or insurer against whom a claim is filed may assert, as a defense, that the actual responsibility lies with another employer or insurer, regardless of whether or not the worker has filed a claim against that other employer or insurer, if that notice was given as provided in this subsection.”

(Emphasis supplied.) ORS 656.308(2) (1990) was the legislature’s response to the issue of joinder of multiple employers and insurers. It provides that, to join an “employer or insurer,” the worker must file a claim against “that employer or insurer.” The language of the statute makes it clear that claims must be filed against each employer and insurer and that the filing of a claim against an employer does not join each of the employer’s insurers. The 1990 version of ORS 656.308(2) also requires that the employer or insurer who intends to argue that another employer or insurer is responsible issue a notice of disclaimer. That notice must contain a list of employers or insurers that the disclaiming party believes to be responsible for the claim and must be issued within 30 days of notice of the claim. The claimant then has [490]*49060 days from the notice of disclaimer to file a claim against the named employers or insurers. The statute prohibits reliance on the lack of responsibility as a defense if the insurer or employer does not comply with the disclaimer process.

In 1995, the legislature made extensive amendments to ORS 656.308

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Norstadt v. MURPHY PLYWOOD/LIBERTY NORTHWEST INSURANCE
941 P.2d 1030 (Court of Appeals of Oregon, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
941 P.2d 1030, 148 Or. App. 484, 1997 Ore. App. LEXIS 771, Counsel Stack Legal Research, https://law.counselstack.com/opinion/norstadt-v-murphy-plywoodliberty-northwest-insurance-orctapp-1997.