United Pacific Reliance Insurance v. Banks

669 P.2d 831, 64 Or. App. 644, 1983 Ore. App. LEXIS 3629
CourtCourt of Appeals of Oregon
DecidedSeptember 28, 1983
Docket79-08983 & 79-09538; CA A25014
StatusPublished
Cited by2 cases

This text of 669 P.2d 831 (United Pacific Reliance Insurance v. Banks) 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
United Pacific Reliance Insurance v. Banks, 669 P.2d 831, 64 Or. App. 644, 1983 Ore. App. LEXIS 3629 (Or. Ct. App. 1983).

Opinion

RICHARDSON, P. J.

The question in this workers’ compensation case is which of two successive carriers is responsible. Claimant, a sandwich maker for Papa John’s Sandwich Company, began to experience symptoms of her shoulder condition January 8, 1979, while United Pacific Reliance (U.P.) was the carrier. However, claimant did not seek medical attention or miss work until May, 1979, when Argonaut Insurance Company (Argonaut) was the carrier. Argonaut contends that claimant’s condition is an injury for which U.P. is responsible; U.P. contends that it is a disease for which Argonaut is responsible, or alternatively that, if it is an injury, Argonaut is nevertheless responsible because claimant’s employment while Argonaut was the carrier contributed independently to her injury.

The referee found that Argonaut was the responsible carrier. He concluded that, whether claimant suffered from an injury or an occupational disease, her employment while Argonaut was the carrier had contributed to her condition, also noting that she was not disabled until after Argonaut became the carrier. The Workers’ Compensation Board reversed, finding that claimant suffered an injury while U.P. was the carrier and that her employment while Argonaut was the carrier did not alter U.P.’s liability. On de novo review, ORS 656.298(6), we conclude that claimant suffered an injury and that U.P., the carrier at the time of the injury, is responsible.

Claimant’s trouble began on the day she returned to the production line after a period of three or four weeks replacing a vacationing worker at a desk job. That day was one of the particularly strenuous days, known as “triangle days,” when “triangle sandwiches” were produced. As the referee described claimant’s work:

«* * * claimant’s job was standing at the counter approximately waist high with stacks of bread on breadboards to her left, mustard and mayonnaise in large bowls to her right, meat, cheese and other ingredients in front of her. She would pick two pieces of bread at a time, lay them down in rows in front of her with the left hand, apply mayonnaise or mustard and then fill the sandwiches with meat and cheese as necessary. This was a fast twisting side-to-side motion with her arms and hands working very quickly. Occasionally claimant had to stoop or bend to fetch a new breadboard full of bread from [647]*647underneath her counter and put it on top of her counter to her left. Occasionally she would have to stoop to her right to fill the mustard and mayonnaise bowls from vats.”

The work was very fast and involved particularly awkward movements. The boards she was required to lift were heavy. Claimant testified that she felt a sudden sharp pain in her left shoulder, which she described as feeling like

“* * * somebody was turning on something, off and on, like a switch or something, a shock or something like that * * *.”

She believed she had been bending at the time and at that moment thought she must have “moved wrong,” although she could remember no single specific movement to which she attributed the onset of the pain. At an earlier hearing1 she had testified:

“* * * I was just hurrying and involved in doing my work, and I lifted. All of a sudden I got this pain in my shoulder, and I said must have moved wrong or something. I said to Becky, ‘I must have moved wrong or something.’ She said, ‘Oh, is it really bothering you?’ I said ‘Yes, it is really bothering me, but I guess it will go away.’ * * *”

At that hearing, in response to her attorney’s question as to whether there was one specific incident when she felt pain in her arm, she responded, “Yes, when I went to go like this (indicating) to make my normal way to make my sandwiches.” Before that incident, claimant had not had any problems with her shoulder.

Claimant continued to experience pain in her left shoulder area after the January 8 incident, but did not immediately seek medical attention or miss work. She did, however, frequently perform lighter work or ask her co-worker to help with the tasks that caused her pain. Supervisory personnel and a co-worker recalled her complaints. She testified that at first her shoulder only bothered her on “triangle days,” but eventually it bothered her on other days as well. At the end of April or beginning of May she went to the emergency room at Holla-day Park Hospital, where she was told she had a “charley [648]*648horse.”2 On May 7,1979, claimant first saw her initial treating physician, Dr. Berselli, an orthopedic surgeon, who prescribed medication and physical therapy and advised her to stop working. His initial diagnosis was “chronic mild fascitis of the rhomboid muscle group.” She was referred to Dr. Langston in September, 1979. He diagnosed “musculoligamentous strain of the left supraspinatus and overlying trapezius area, by history,” and could not find “objective evidence of disability.” An artherogram by a radiologist revealed no underlying rotator cuff tear. In November, 1979, Dr. Berselli stated that he could find no specific organic reason for claimant’s pain. That December she consulted Dr. Thompson, an orthopedic surgeon. He thought she might have a herniated cervical disc and referred her to Dr. Berkeley, who performed a myelogram in February, 1980. He found a “discrete C5-C6 lesion causing bilateral nerve root amputation,” confirming his diagnosis of “traumatic cervical spondylopathy at C5-6.” He recommended surgery. Dr. Berkeley concluded that claimant’s condition was the direct result of her January 8, 1979, injury, an opinion in which Dr. Berselli concurred.

The first inquiry is whether claimant’s condition resulted from an industrial injury or an occupational disease. In O’Neal v. Sisters of Providence, 22 Or App 9, 537 P2d 580 (1975), we approved the following language to define the distinction:

“ * * What set[s] occupational diseases apart from accidental injuries [is] both the fact that they can[not] honestly be said to be unexpected, since they [are] recognized as an inherent hazard of continued exposure to conditions of the particular employment, and the fact that they [are] gradual rather than sudden in onset. * * *’ (Quoting from 1A Larson Workmen’s Compensation Law § 41.31 (1973)).” 22 Or App at 16.
“ * * An occupational disease is stealthy and steals upon its victim when he is unaware of its presence and approach. Accordingly, he can not later tell the day, month or possibly even the year when the insidious disease made its intrusion into his body. * * * Upon the other hand, the victim of an industrial accident virtually always can tell the day and even ..the hour when the purported injury befell him. He does not c.-tribute his present condition to something that crept in [649]*649upon him unobserved but to an accident which he and possibly [many] [sic] others observed. * * *’ White v. State Ind. Acc. Com., 227 Or 306, 322, 362 P2d 302 (1961).” 22 Or App at 14.

Applying these distinctions in this case, we find the description of the onset of claimant’s condition to be more consistent with an injury. It was sudden and occurred on claimant’s first day back on the line on a particularly strenuous day.

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Cite This Page — Counsel Stack

Bluebook (online)
669 P.2d 831, 64 Or. App. 644, 1983 Ore. App. LEXIS 3629, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-pacific-reliance-insurance-v-banks-orctapp-1983.