Fleming v. SAIF Corp. (In re Fleming)
| Decision Date | 04 March 2020 |
| Docket Number | A165693 |
| Parties | In the MATTER OF the COMPENSATION OF Lloyd R. FLEMING, Claimant. Lloyd R. Fleming, Petitioner, v. SAIF Corporation and Treske Precision Machining, Respondents. |
| Court | Oregon Court of Appeals |
Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.
Julie Masters, Eugene, argued the cause and filed the brief for respondents.
Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
Claimant seeks judicial review of an order of the Workers’ Compensation Board. In that order, the board affirmed respondent SAIF’s denial of his occupational disease claim for a right shoulder condition. The board concluded, applying Gilkey v. SAIF , 113 Or. App. 314, 832 P.2d 1252, rev. den. , 314 Or. 573, 840 P.2d 1295 (1992), that claimant’s prior disputed claim settlement (DCS) under ORS 656.289(4) with his previous employer, in which he stipulated that his shoulder condition was not compensably related to his work for that employer, precluded him from contending, in this proceeding involving an occupational disease claim against a different employer, that that employment contributed to his claimed occupational disease. On review, claimant argues that the board’s interpretation of Gilkey is incorrect and that the board erred when it concluded that claimant’s DCS with respect to the claim against his prior employer precluded him from asserting, in this proceeding, that his previous work contributed to his claimed occupational disease in his right shoulder. We agree with claimant and, therefore, reverse and remand to the board.
The dispositive facts in this case are not in dispute. Claimant worked as a saw fitter for Simonds International from 2010 to 2013. His primary responsibilities included grinding large band saws and rolling out welds, all of which put considerable pressure on his arms. In 2012, claimant began experiencing significant pain whenever he would raise or lower his right arm. He visited his doctor, who diagnosed him with a full thickness partial tear of his right rotator cuff. Claimant filed for workers’ compensation and Simonds’s insurer, Liberty Northwest Insurance Company, accepted the claim. Claimant underwent several weeks of treatment during which the condition improved significantly. In February 2013, claimant was released back to regular full duty with no permanent limitations.
In November 2013, claimant left his job with Simonds to work for Treske Precision Machining. He worked at this job without difficulty until July 2014, when the pain in his shoulder returned. Claimant returned to see his doctor again, who discovered that his condition had worsened to a full thickness rotator cuff tear
. Claimant requested that Liberty, as Simonds’s insurer, accept the full thickness tear as a worsening of the rotator cuff tear accepted by Liberty in 2012. In evaluating claimant’s request, Liberty scheduled an insurer-arranged medical examination (IME) of claimant. After examining claimant, the IME doctor concluded that claimant’s current rotator cuff tear was the result of a condition that was preexisting at the time of his 2012 rotator cuff injury. For that reason, Liberty denied claimant’s claim for a worsening of the 2012 condition.
Claimant nonetheless underwent surgery to repair his rotator cuff
and sought review of Liberty’s denial. However, before a hearing was held in claimant’s case, claimant and Simonds, acting through Liberty, agreed to settle the case by DCS under the authority of ORS 656.289. The DCS recited the competing contentions of claimant and Liberty regarding claimant’s rotator cuff tear that "[e]ach party has substantial evidence to support its factual allegations," that there was a "bona fide dispute between the claimant and [Liberty]," and that "[t]he parties have agreed to compromise and settle the denied claim under the provisions of ORS 656.289(4)." Under the terms of the DCS, claimant received $25,000 in exchange for allowing Liberty’s denial of his worsening claim to remain in force. The DCS also provided that claimant agrees that the "legal effect" of the settlement would be "the same as if the claimant admitted and agreed to the accuracy of the contentions of [Liberty]" recited in the agreement.
Shortly after entering into the DCS, claimant initiated the occupational disease claim at issue in this case against his current employer, Treske, insured by SAIF. Claimant asserted that, although working conditions at Treske were not the major contributing cause of his injury, Treske was still liable for his current rotator cuff condition by virtue of the "last injurious exposure rule" (LIER), applicable to occupational disease claims under Inkley v. Forest Fiber Products Co. , 288 Or. 337, 605 P.2d 1175 (1980). As had Liberty, SAIF scheduled an IME of claimant. Just as before, the examining doctor concluded that claimant’s work conditions were not the major cause of his full thickness rotator cuff tear
. As a result, SAIF too denied claimant’s claim.
Claimant requested a hearing before an administrative law judge (ALJ), who upheld SAIF’s denial of the claim. The ALJ held that, under Gilkey , 113 Or. App. 314, 832 P.2d 1252, claimant’s DCS with Liberty as a matter of law operated to preclude him from contending that his employment with Simonds was a cause of his current rotator cuff condition. That, according to the ALJ, meant that claimant’s right shoulder condition had to be treated as a preexisting condition for purposes of his claim and that claimant had to "prove that his work at Treske was the major contributing cause of the combined condition and pathological worsening of his right shoulder condition." Because the medical evidence submitted by claimant did not address that point at all, the ALJ concluded that claimant had not met his burden of proof and affirmed SAIF’s denial.
Claimant sought review by the Worker’s Compensation Board, which adopted and affirmed the ALJ’s order. On review before the board, claimant argued that the DCS that he entered into to resolve his prior claim against Simonds did not preclude him from asserting, in the context of the instant claim, that his employment at Simonds contributed to his claimed occupational disease. Gilkey , he argued, is distinguishable because, in that case, the claimant’s prior DCS and subsequent claim involved the same employer. Here, claimant’s prior DCS involved a different employer from the one he now asserts a subsequent claim against. Instead, claimant asserted that Ahlberg v. SAIF , 199 Or. App. 271, 111 P.3d 778 (2005), controls. Ahlberg provides that, under the LIER, a worker’s compensation claimant can rely on "any and all working conditions" to establish compensability of his current injury. Id. at 276, 111 P.3d 778 (emphasis in original). SAIF, Treske’s insurer on the claim, argued in response that the ALJ correctly decided that Gilkey controls.
The board ultimately adopted the ALJ’s opinion and order, employing largely the same reasoning. The board rejected claimant’s attempt to distinguish Gilkey , explaining that, in its view, Gilkey did not turn on the fact that the prior DCS and subsequent claim both involved the same employer. Instead, the board understood Gilkey to turn on the express wording of the DCS at issue. The board explained that here, just as in Gilkey , claimant "expressly stipulated and agreed that his then-current right shoulder conditions (which included the current claimed conditions) were not related or attributable to his employment exposure (including his work injury and work activities) with Simonds and were due, instead, to nonwork-related causes or subsequent injuries or work activities." (Emphasis in original.) Those stipulations, even though they were included in a settlement agreement to which Treske was not a party, were stipulations that bound claimant on his claim against Treske. Claimant sought judicial review of the board’s decision.
The legal effect of a DCS under ORS 656.289(4) on a subsequent claim against a different employer presents a question of law, so we review for legal error. ORS 183.482(8).
As an initial matter, the board erred when it concluded that Gilkey stands for the proposition that a DCS under ORS 656.289(4) binds a claimant in the context of a different claim against a different employer. That is because that issue was not presented in Gilkey . At issue in Gilkey was the legal effect of a DCS in the context of the claimant’s subsequent claim against the same employer and the same insurer. We were not asked to address, and did not address, the extent to which a nonparty to a DCS might rely on it to resolve factual issues in the context of a subsequent proceeding. To answer that question, we must interpret ORS 656.289(4) by examining its text in context. See State v. Couch , 341 Or. 610, 617, 147 P.3d 322 (2006).
ORS 656.289(4) provides:
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