Mission Ins. Co. v. Dundon
| Decision Date | 22 July 1987 |
| Citation | 739 P.2d 1069,86 Or.App. 470 |
| Parties | In the Matter of the Compensation of Michael P. Dundon, Claimant. MISSION INSURANCE COMPANY and Wood Contractors, Petitioners, v. Michael P. DUNDON, Crawford Logging and Loggers Assurance Company, Respondents. 84-08785 and 84-08786; CA A40182. |
| Court | Oregon Court of Appeals |
Marianne Bottini, Portland, argued the cause, for petitioners. With her on the briefs was Bottini, Bottini & Lehner, Portland.
H. Scott Plouse, Medford, argued the cause and filed the brief, for respondents Crawford Logging and Loggers Assurance Company.
No appearance for respondent Dundon.
Before WARDEN, P.J., and VAN HOOMISSEN and YOUNG, JJ.
Mission Insurance Company (Mission) and Wood Contractors (Wood) seek review of a Workers' Compensation Board order holding them responsible for claimant's right knee injury. The issue is whether claimant suffered an aggravation (the responsibility of Mission and Wood) or a new injury (the responsibility of Loggers Assurance Company (Loggers) and Crawford Logging (Crawford)). We hold that Loggers and Crawford are responsible and reverse.
Claimant was originally injured on February 25, 1984, while employed by Wood. He was attempting to negotiate a rock face when he slipped and fell down a slope, striking the outside of his right knee on a rock. Although claimant managed to finish the day's work, the pain in his knee convinced him that he needed to see a doctor. He first saw Dr. Ross, who referred him to Dr. Schachner, an orthopedic surgeon. On March 21, Schachner examined him, suggested resistive and limbering exercises and gave him a tentative work release date of March 26.
On March 26, claimant went to work for Crawford. On April 11, he again hurt his right knee when he jumped to the ground from a caterpiller tractor. His original injury caused problems on the outside side of his right knee. Those complaints had not completely resolved by the time of the Crawford incident. After the second fall, claimant had new complaints on the inside of his right knee, in addition to a worsening of pain on the outside of the knee.
Mission and Crawford denied responsibility. The referee ruled that the second injury "constitutes a new and intervening injury which absolves the original carrier from further responsibility for either the ongoing lateral right knee problems or ongoing medial right knee problems." The Board reversed, holding that claimant had suffered an aggravation which was the responsibility of Mission. On de novo review, we agree with the referee.
In successive injury cases, the first employer remains responsible if the second injury takes the form of a recurrence of the first and the second incident did not contribute to the causation of the disabling condition. If, on the other hand, the second incident independently contributed, however slightly, to the causation of the disabling condition, the second employer is solely responsible. 1 Boise Cascade Corp. v. Starbuck, 296 Or. 238, 244, 675 P.2d 1044 (1984); Hensel Phelps Const. v. Mirich, 81 Or.App. 290, 294, 724 P.2d 919 (1986). In his deposition, Schachner testified:
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