Naes Corp. v. Sci 3.2, Inc. (In re Comp. of Lodge)

• Decision Date: 29 April 2020
• Docket Number: A165158
• Citation: 465 P.3d 246,303 Or.App. 684
• Parties: In the MATTER OF the COMPENSATION OF William H. LODGE, Claimant. NAES Corporation, Petitioner, v. SCI 3.2, Inc. and William H. Lodge, Respondents.
• Court: Oregon Court of Appeals

303 Or.App. 684

465 P.3d 246

In the MATTER OF the COMPENSATION OF William H. LODGE, Claimant.NAES Corporation, Petitioner,

v.SCI 3.2, Inc. and William H. Lodge, Respondents.

A165158

Court of Appeals of Oregon.

Argued and submitted September 28, 2018.

April 29, 2020

Rebecca A. Watkins, Portland, argued the cause for petitioner. Also on the briefs was Sather, Byerly & Holloway, LLP.

Trisha D. Hole argued the cause and filed the brief for respondent SCI 3.2, Inc.

No appearance for respondent William H. Lodge.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.^*

DeHOOG, P. J.

Petitioner, employer NAES Corporation (NAES), seeks judicial review of an order of the Workers’ Compensation Board holding it responsible for claimant's hearing loss under the last injurious exposure rule (LIER). In its first assignment of error, NAES contends that the board erred in concluding that claimant's most recent employer, respondent SCI 3.2, Inc. (SCI), had successfully shifted responsibility for claimant's occupational disease to NAES by proving, to a reasonable medical probability, that claimant's prior employment was the sole cause of his hearing loss.¹ NAES argues that the board applied the incorrect standard of proof and that, because it was at least possible that claimant's work for SCI contributed to his hearing loss, the board erred in concluding that his prior employment had been the sole cause of that occupational disease. In its remaining two assignments of error, NAES argues that the record lacks substantial evidence and reason to support the board's findings that (1) it was impossible for claimant's work for SCI to have contributed to his hearing loss; and (2) claimant's prior employment was the sole cause of that condition. SCI responds that the board applied the correct standard of proof under the LIER and that substantial evidence in the record supports that decision. Reviewing for legal error and substantial evidence, we conclude that the board did not err; accordingly, we affirm.

We summarize the facts as found by the board, noting those disputed by NAES. ORS 656.298(7).² Claimant, William Lodge, worked as a boilermaker for various employers beginning in 1966, and, at the time he retired from that profession in 2012, claimant had been working for NAES. Following his retirement, claimant began working seasonally for SCI and worked in that capacity from 2013 through 2016. While employed by SCI, claimant fabricated floats for the Rose Festival Parade, at various times engaging in tasks such as sawing, welding, grinding, and hammering.

In 2014, Dr. Lipman, an ear, nose, and throat specialist, diagnosed claimant with bilateral, noise-induced hearing loss. Claimant subsequently filed an occupational disease claim for that condition with both NAES and SCI. Although neither employer disputed the compensability of claimant's condition, both employers issued denials of responsibility. Claimant later submitted to an examination by Dr. Hodgson at NAES's request. A third doctor, Wilson, reviewed claimant's medical records at SCI's request. As the board explained in its order, Lipman concluded that, to a reasonable medical probability, claimant's work as a boilermaker had been the sole cause of his hearing loss and claimant's work for SCI had not contributed to that condition. The board further explained that, "[b]ased on certain assumptions regarding the nature of claimant's work and his use of hearing protection that were supported by claimant's testimony, Dr. Hodgson opined that it was medically probable, but not certain, that the occupational component of the hearing loss occurred before claimant began working for [SCI]." Finally, after noting Wilson's acknowledgement that he had "insufficient information to be certain," the board explained that he had nonetheless concluded that " ‘it was medically probable that all of the occupational exposure occurred [before claimant worked for SCI].’ " NAES disputes the board's characterization of each doctor's opinion in ways that are not material to our disposition, but there is no dispute that the board relied on those medical opinions as the basis of its order.³

The board first determined that, as the last employer that could have caused claimant's hearing loss, SCI was presumptively responsible for that condition under the LIER. However, citing Roseburg Forest Products v. Long , 325 Or. 305, 313, 937 P.2d 517 (1997), the board observed that SCI could shift responsibility for claimant's occupational disease to a prior employer if it established that "(1) it was impossible for conditions at its workplace to have caused the disease; or (2) the disease was caused solely by conditions at one or more previous employments." Ultimately, the board concluded that it was "medically probable" that claimant's work conditions at SCI had not contributed to claimant's hearing loss. But, by the same token, the board reasoned that it could not conclude that those conditions could not possibly have contributed to claimant's hearing loss to some degree. Accordingly, the board declined to shift responsibility to NAES under the first Roseburg Forest Products prong, namely, that such a causal connection was "impossible." However, reasoning that the Roseburg Forest Products rule permitted a presumptively responsible employer to shift responsibility to another employer in either of two, independent ways, the board concluded that SCI had effectively shifted responsibility to NAES under the second, "sole cause" prong, stating that "this record * * * establishes [to] a medical probability that claimant's work prior to his [SCI] employment was the sole cause of his occupational disease." NAES now seeks judicial review of the board's decision.

NAES challenges both the board's legal conclusion that it is responsible for claimant's occupational disease claim and the factual sufficiency of the record to support that conclusion. We review the board's legal conclusions for errors of law and its factual findings for substantial evidence in the record. SAIF v. Harrison , 299 Or. App. 104, 105, 448 P.3d 662 (2019) (citing ORS 183.482(8)(a), (c) ). In undertaking that review, we note that the parties agree that the Supreme Court's decision in Roseburg Forest Products sets forth the applicable analysis under the LIER. Further, neither party disputes that claimant's hearing loss is work related and therefore compensable, nor that SCI is the employer presumptively responsible for that condition under the LIER. See Roseburg Forest Products , 325 Or. at 309, 937 P.2d 517 (describing the LIER, in part, as assigning responsibility for a worker's compensable condition to the "last employer that could have caused the claimant's injury"). Our focus, therefore, is on whether SCI met its burden under the LIER, permitting it to shift responsibility for claimant's hearing loss back to NAES as claimant's previous employer. See id. at 313, 937 P.2d 517 (application of the LIER establishes "a prima facie case against the last employer," which may be rebutted or shifted by that employer).

On judicial review, NAES raises three assignments of error, each challenging the board's determination that SCI successfully shifted responsibility for claimant's occupational disease to NAES. However, we discuss only the merits of NAES's first and third assignments, which assert (1) that the board "applied an erroneous legal standard under [the] LIER when it focused on probability[,] not possibility[,] of contribution," and (2) that the board's determination that claimant's prior work conditions were the sole cause of his hearing loss is not supported by substantial evidence and reason.⁴ We address each assignment in turn.

As we understand NAES's briefing of its first assignment of error, its argument has two, interwoven parts. First, NAES contends that the board relied on the wrong standard of proof when it determined responsibility for claimant's condition based on proof to a reasonable medical probability, because doing so "dilute[s] the Roseburg Forest Products standard [so as] to be one of probable contributions, not the outlined impossibility/sole cause standard." In NAES's view, a presumptively responsible employer can never shift responsibility to an earlier employer if there is any possibility that the claimant's work for the later-in-time employer made even a slight contribution to the claimant's occupational disease. NAES argues that, because proving that it was probable that claimant's work at SCI had not contributed to his hearing loss does not foreclose the possibility that it did, the board erred in relying on a reasonable-medical-probability standard.

However, to the extent that NAES argues that SCI was required to establish either Roseburg Forest Products prong by more than a reasonable medical probability, we recently reached the opposite conclusion in Liberty Metal Fabricators v. Lynch Co. , 295 Or. App. 809, 813, 435 P.3d 810 (2019), adh'd to as modified on recons. , 302 Or. App. 110, 456 P.3d 691 (2020) (stating, in LIER case, that "evidence offered in terms of reasonable medical probability would suffice to establish that it was not possible for [the employment in question] to have caused claimant's hearing loss"); see also id . at 812, 435 P.3d 810 ("The standard of proof in this [LIER] case is a preponderance of the evidence."). Thus, the board did not err in basing its decision on evidence satisfying only a "reasonable medical probability" standard of proof.

NAES's second argument under its first assignment of error is somewhat more nuanced. NAES seemingly acknowledges that, as the board reasoned in its order, a presumptively responsible employer can shift responsibility to another employer in either of two ways. Indeed, NAES expressly states that an employer can shift responsibility by "show[ing] [that] it was impossible for its [work] conditions to have caused a worker's disease or that the disease was...