Moe v. Ceiling Systems, Inc., 77-7356

• Decision Date: 11 February 1980
• Docket Number: No. 77-7356,77-7356
• Parties: In the Matter of the Compensation of Donald MOE, Claimant, Respondent-Cross-Petitioner, v. CEILING SYSTEMS, INC., Petitioner, v. JOHNSON ACOUSTICAL & SUPPLY CO., Respondent. ; CA 13452.
• Court: Oregon Court of Appeals

Page 644

606 P.2d 644

44 Or.App. 429

In the Matter of the Compensation of Donald MOE, Claimant,

Respondent-Cross-Petitioner, v. CEILING SYSTEMS, INC., Petitioner, v. JOHNSON ACOUSTICAL & SUPPLY CO., Respondent.

No. 77-7356; CA 13452.

Court of Appeals of Oregon.

Argued and Submitted Nov. 14, 1979.

Decided Feb. 11, 1980.

Elizabeth K. Reeve, Portland, argued the cause for petitioner. With her on the brief were Souther, Spaulding, Kinsey, Williamson & Schwabe and James D. Huegli, Portland.

Edward C. Olson, Portland, argued the cause and filed the brief for respondent-cross-petitioner.

William C. Campbell, Portland, argued the cause for respondent Johnson Acoustical & Supply Co. On the brief were Lindsay, Nahstoll, Hart, Neil & Weigler and James N. Gardner, Portland.

Before SCHWAB, C. J., and LEE and RICHARDSON, JJ.

RICHARDSON, Judge.

This workers' compensation case involves the issues of whether claimant has proven a compensable occupational disease and, if so, which of two employers is responsible for payment of benefits. The referee held that claimant had not established that his condition arose out of and in the course of his employment. The Workers' Compensation Board reversed the order of the referee and ordered Ceiling Systems, Inc., claimant's last employer, to accept the claim. Ceiling Systems appeals, contending claimant's condition is not compensable and in the alternative, if it is compensable, Johnson Acoustical and Supply Company is the responsible employer. Claimant argues that his condition is compensable and contends either employer is responsible. He also cross-appeals the portion of the Board's order reducing the award of attorney fees made by the referee. Johnson Acoustical and Supply Company contends that claimant's disease did not arise out of his employment and argues that if the court, however, finds the disease is compensable, Ceiling Systems is the responsible employer.

Claimant, who was 47 years old at the time of the hearing, had worked as a carpenter for six separate employers since coming to Oregon in 1959. He worked for Johnson Acoustical from 1971 through April, 1977, for Pacific Partitions two weeks in 1977, and then for Ceiling Systems for six weeks in 1977.

While working for Johnson Acoustical he spent a portion of his time installing sheetrock ceilings. That type of ceiling is installed by two workers who stand on a scaffold and lift a sheetrock panel and suspend it on their heads until it is attached to the ceiling frame by nails or screws. The sheetrock panels weigh approximately 145 pounds. Approximately one-third of claimant's time while employed by Johnson Acoustical was spent installing sheetrock ceilings. Claimant also installed sheetrock while "moonlighting." Claimant was involved in a nonwork related automobile accident in 1971. He sustained a neck injury that required medical treatment. His personal injury claim was settled.

He left Johnson Acoustical in April, 1977, and after two weeks work at Pacific Partitions he went to work for Ceiling Systems. His job at Ceiling Systems involved installation of acoustical tile ceilings. Acoustical tile ceilings are installed by attaching wires to the existing ceiling from which the tile framework is suspended in a grid pattern. Installation of the wires requires overhead work. Once the frame gridwork is installed the installer, standing on a scaffold, works at eye level to place the tiles in the grid frames. The individual tiles weigh approximately seven pounds.

Approximately two months before leaving Johnson Acoustical, claimant began experiencing pain in his right arm. The pain persisted during the time he worked for Ceiling Systems. Toward the end of the latter employment the pain became more severe and radiated up into his neck and ultimately involved pain in his neck and both arms.

Claimant consulted Dr. Glaubke, who diagnosed his conditions as a cervical disc syndrome. He was ultimately referred to Dr. Tanabe, an orthopedic surgeon, who concluded his neck pain was caused by either osteophytes, which produced a narrowing of the space in the spinal column through which the spinal cord passed, or osteoarthritis. The condition was described as a form of degenerative arthritis. Dr. Tanabe surgically fused certain of claimant's vertebra, which relieved the pain in his arms.

The dispositive issue is whether claimant has sustained his burden to prove that his condition was caused or worsened by the condition of his employment. To sustain his burden of proof, claimant offered his own statement and a report of Dr. Tanabe to establish the causal link between the disease and his employment. Claimant wrote on an initial injury report: "I feel my problem has been caused from years of overhead work, doing ceiling work and working with heavy sheetrock." In a letter received in evidence, Dr. Tanabe stated his bare conclusion that claimant's "employment as a sheetrocker and ceiling...