Gosda v. J.B. Hunt Transp.
| Decision Date | 15 July 1998 |
| Citation | 962 P.2d 777,155 Or.App. 120 |
| Court | Oregon Court of Appeals |
| Parties | In the Matter of the Compensation of Gene H. Gosda, Claimant. Gene H. GOSDA, Petitioner, v. J.B. HUNT TRANSPORTATION and Liberty Mutual Insurance, Respondents. 94-03915; CA A96563. |
David Morrison argued the cause for petitioner. With him on the brief was Aller & Morrison, P.C., Roseburg.
Jerald Keene, Tigard, argued the cause and filed the brief for respondents.
Before De MUNIZ, P.J., and HASELTON and LINDER, JJ.
De MUNIZ, Presiding Judge.
Claimant seeks review of an order of the Workers' Compensation Board (Board). The Board adopted and affirmed an order of the administrative law judge (ALJ) denying the compensability of claimant's claim. We review for errors of law and substantial evidence, ORS 656.298(7); 183.482(7) and (8), and reverse and remand.
Claimant began working as a long-haul truck driver in 1975. Most recently, he worked with employer, beginning in 1992 and ending in 1995. Throughout his years as a long-haul driver, claimant's work caused him to use his hands in ways that ultimately led to his medical condition--e.g., holding a steering wheel that vibrated, switching gears, cinching chains and straps, and loading and unloading items. In 1992, claimant began to experience numbness in his hands, a sensation that gradually increased in intensity. In 1996, claimant went to a doctor for treatment and subsequently filed a claim for an occupational disease with employer. Shortly thereafter, claimant was diagnosed with severe bilateral carpal tunnel syndrome and was advised to obtain surgery.
Employer's insurer had a physician examine claimant. That physician reviewed claimant's history and medical records and reported that claimant's work as a truck driver was the major contributing cause of claimant's condition. Two weeks later, insurer denied the compensability of claimant's occupational disease, writing in a denial letter that "[i]nformation obtained during this investigation fails to establish your condition * * * is related to your work activity with [employer]." Employer did not dispute responsibility.
Claimant requested a hearing on the issue of compensability 1 and named only employer as the responsible party. Claimant did not assert the applicability of the last injurious exposure rule (LIER) at any time during the hearing. The ALJ determined that all of the medical evidence, including the report of insurer's physician, "establishe[d] that claimant's work as a truck driver caused his carpal tunnel syndrome." However, the ALJ affirmed insurer's compensability denial, ruling that "the evidence d[id] not establish that claimant's work for this employer was the major contributing cause of his carpal tunnel syndrome." (Emphasis in original.) The ALJ also ruled that, without a request by claimant to rely on the LIER as a rule of proof, the ALJ could not invoke the rule on its own motion to establish the compensability of claimant's condition. The ALJ relied on Manwell Garibay, 48 Van Natta 1476 (1996), which involved similar facts and stated that the ALJ could not invoke the LIER as a rule of proof on its own motion. The Board adopted and affirmed the ALJ's decision.
Apart from the specific circumstances of this case, two additional facts are present here that were not before the Board in its determination of this case. First, after the Board issued its decision in this case, we reversed the Board in Garibay v. Barrett Business Services, 148 Or.App. 496, 941 P.2d 1036 (1997). Second, in Garibay, we applied the 1990 version of ORS 656.308(2); 2 however, the 1995 version of that statute applies here.
Claimant assigns error to the Board's order affirming the compensability denial of claimant's occupational disease claim. Claimant contends that, because "the instant case is legally indistinguishable from Garibay[,]" stare decisis mandates a reversal here. Though we disagree with claimant that Garibay controls the outcome here, for the reasons that follow, we agree that the Board's order must be reversed and remanded for reconsideration.
Claimant is correct that the facts of this case are analogous to the facts of Garibay. There, over a 13-year period, the claimant had worked for three employers with working conditions capable of causing his medical condition. 148 Or.App. at 498, 941 P.2d 1036. However, he filed an occupational disease claim against only his most recent employer. The employer denied compensability, and the claimant requested a hearing on that issue. At the hearing, the medical evidence undisputably established that the claimant's medical "condition was caused by [his] work [as a tree harvester] over the 13 years[.]" Id. Without reaching the responsibility issue, the Board ultimately affirmed the ALJ's ruling that the claimant had failed to prove major contributing causation with respect to the named employer. Id. at 499-500, 941 P.2d 1036. Additionally, because the claimant had failed to refer to the LIER as a rule of proof, the Board refused to invoke the rule on its own motion to establish the compensability of the claimant's condition. Id. at 500, 941 P.2d 1036.
On judicial review, we viewed the case differently from the Board, framing it as a case "about responsibility[,]" rather than compensability. Id. at 501, 941 P.2d 1036. We concluded that, "although [the employer] did not, in the technical sense, raise responsibility as a defense, that was the practical effect of its contention to the ALJ that [the] claimant had a preexisting condition for which [the employer] was not responsible." Id. at 501, 941 P.2d 1036. Our analysis followed from that conclusion. We analyzed the effect of the employer's failure to comply with the responsibility disclaimer requirement of ORS 656.308(2) (1990), which provided, in part:
(Emphasis supplied.)
As the emphasized language shows, ORS 656.308(2) (1990) expressly conditioned an employer's ability to assert a responsibility defense on its earlier provision of a responsibility disclaimer to the claimant. We held that the employer's failure to comply with the disclaimer requirement "barred [the employer] from making [a responsibility] argument." Id. at 501, 941 P.2d 1036. In holding so, we did not address the compensability question that the Board considered in Garibay.
Here, compensability is the issue. Employer's insurer sent claimant a letter denying compensability, claimant requested a hearing on that issue, insurer defended that issue on a failure of proof theory, and the ALJ ultimately agreed, ruling that claimant had "failed to prove causation with respect to this employer." The issue of responsibility was not reached. Thus, to resolve this case, we must now squarely address the issue raised by...
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RLC INDUSTRIES v. Sun Studs, Inc.
...employer or insurer as the responsible party; the second listed only Sun Studs. Based on our decisions in Gosda v. J.B. Hunt Transportation, 155 Or.App. 120, 962 P.2d 777 (1998), Garibay v. Barrett Business Services, 148 Or.App. 496, 941 P.2d 1036 (1997), and Farmers Ins. Group v. Huff, 149......