Weyerhaeuser Co. v. Woda

• Decision Date: 08 March 2000
• Citation: 998 P.2d 226,166 Or. App. 73
• Parties: In the Matter of the Compensation of Melvin C. Woda, Claimant. WEYERHAEUSER COMPANY, Petitioner, v. Melvin C. WODA, Respondent.
• Court: Oregon Court of Appeals

998 P.2d 226

166 Or. App. 73

In the Matter of the Compensation of Melvin C. Woda, Claimant.

WEYERHAEUSER COMPANY, Petitioner, v. Melvin C. WODA, Respondent.

(96-11475; CA A101658).

Court of Appeals of Oregon.

Argued and Submitted December 28, 1998.

Decided March 8, 2000.

John M. Pitcher, Portland, argued the cause and filed the brief for petitioner.

Christopher D. Moore, Eugene, argued the cause for respondent. With him on the brief was Malagon, Moore & Jensen.

Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and WOLLHEIM, Judge.

LANDAU, P.J.

At issue in this case is whether claimant's respiratory condition—a sudden allergic reaction to wood dust at work—must be analyzed as a claim for an occupational disease or as an occupational injury. Different burdens of proof pertain to occupational diseases and occupational injuries, so the distinction is significant. The Workers' Compensation Board (Board) concluded that the condition was properly analyzed as an occupational injury, because it consisted of an event that occurred suddenly in reaction to exposure to the dust. Employer seeks review of the Board's decision, arguing that, under the applicable statutes, claims arising out of exposure to dust are to be treated as occupational diseases, whether sudden in onset or not. We conclude that the Board was correct and affirm.

The relevant facts are not in dispute. Claimant began working for employer as a kiln operator in February 1996. He had worked in the same position for other employers for the previous 30 years. He suffered from long-standing seasonal allergies, with symptoms of sneezing, nasal congestion, itching of the eyes, and occasional breathing difficulties when exposed to grass. In September 1996, claimant was transferred from his position as a kiln operator to a position in a sawmill. The sawmill work exposed claimant to a significant quantity of wood dust. Immediately after starting work at the sawmill, claimant developed shortness of breath, coughing, and wheezing. The symptoms resolved within two to three hours of leaving the mill. During the first three days of work at the mill, the pattern was the same. Claimant's first weekend off, the symptoms completely disappeared, but when he returned to work the following Monday, he immediately experienced worsened shortness of breath, which prompted him to seek emergency hospital care.

Claimant was diagnosed with "acute bronchospasm," "allergic rhinitis," and allergic asthma. Claimant filed a claim based on the allergic reaction to the wood dust at the sawmill. Employer denied the claim. At the hearing on the claim, employer argued that the claim must be analyzed as an occupational disease claim based on the worsening of a preexisting disease or condition, under ORS 656.802(2)(b), which requires that claimant establish that his work activity was the major contributing cause of the combined condition and the pathological worsening of the disease. Claimant argued that the claim must be analyzed as one for an occupational injury under ORS 656.005(7)(a)(B), which requires only that he establish that his work activity was the major contributing cause of his disability or need for treatment of the combined condition. The administrative law judge agreed with claimant and further concluded that claimant satisfied his burden under ORS 656.005(7)(a)(B).

Employer appealed to the Board, and a divided Board affirmed. The majority concluded that, in accordance with a long line of appellate court decisions, the difference between an occupational disease and an occupational injury turns on the extent to which the symptoms of a condition are gradual in onset and not attributable to a specific activity or event. In this case, the Board held, the evidence shows that claimant's condition was an immediate reaction to exposure to wood dust at the sawmill and was not gradual in onset. The Board concluded that the claim had been analyzed properly as one for an occupational injury. Two Board members dissented, arguing that ORS 656.802(1)(a) expressly defines "occupational disease" to include any disease caused by contact with dust.

On review, employer takes up the banner of the dissenting Board members. It argues that the Board's decision is directly contrary to the "plain meaning" of the definition of occupational disease in ORS 656.802(1)(a), which, it contends, shows that the legislature intended that all claims resulting from toxic exposures be treated as "diseases or infection." Claimant argues that the Board was correct and that employer's argument neglects to address the fact that the reference in ORS 656.802(1)(a) to diseases caused by exposure to dust necessarily incorporates the definition of "disease" that has been used by the courts consistently for many years and never altered by the legislature, namely, that a disease is a condition the symptoms of which develop over a period of time and are not sudden in onset.

We acknowledge at the outset that the issue is a difficult one and that we are benefitted by the careful consideration that all members of the Board and the parties have devoted to it. Having said that, we conclude that the Board majority and claimant have the better of the argument.

Our analysis begins with the text of the relevant statute in its context. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). That analysis includes consideration of the Supreme Court's prior construction of the statute, which, the court instructs us, becomes part of the statute itself. Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992). It also includes consideration of prior versions of the statute. Krieger v. Just, 319 Or. 328, 336, 876 P.2d 754 (1994).

What is now ORS 656.802(1) dates back to 1959, when an occupational disease was defined as

"[a]ny disease or infection which arises out of and in the scope of employment, and to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein."

ORS 656.802(1) (1959). That version of the statute did not define the term "disease," much less identify the distinction between a "disease" and an "injury" as those terms are used in the workers' compensation statutes. We first addressed that question in O'Neal v. Sisters of Providence, 22 Or.App. 9, 537 P.2d 580 (1975). In that case, we adopted the distinction articulated in Professor Larson's treatise on workers' compensation law:

"`What set[s] occupational diseases apart from accidental injuries [is] both the fact that they can[not] honestly be said to be unexpected, since they [are] recognized as an inherent hazard of continued exposure to conditions of the particular employment, and the fact that they [are] gradual rather than sudden in onset.'" Id. at 16, 537 P.2d 580 (quoting 1B Larson's Workmen's Compensation law § 41.31 (1973)).

In James v. SAIF, 290 Or. 343, 624 P.2d 565 (1981), the Supreme Court first addressed the question. After describing our holding in O'Neal—specifically our reliance on the gradual versus sudden onset distinction derived from the Larson treatise—the court declared that we were correct. Id. As we have noted, we must treat that construction of ORS 656.802(1) as having become part of the statute. Stephens, 314 Or. at 350 n. 6, 838 P.2d 600.

In 1987, the legislature amended ORS 656.802, in effect, to create three categories of occupational diseases:

"(1) As used in this chapter, `occupational disease' means:

"(a) Any disease or infection arising out of and in the course of employment caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gasses, radiation or other conditions or substances to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death.

"(b) Any mental disorder arising out of and in the course of employment and which requires medical services or results in physical or mental disability or death.

"(c) Any series of traumatic events or occurrences arising out of and in the course of employment which requires medical services or results in physical disability or death."

ORS 656.802(1) (1987). The statute still contained no definition of the term "disease." And nothing in the language of the amended statute or its legislative history suggests that the legislature intended to alter the judicially created definition adopted in O'Neal and James. See Goodyear Tire & Rubber Co. v. Tualatin Tire & Auto, 322 Or. 406, 416, 908 P.2d 300 (1995) (examining legislative history of related statutes as part of statutory context).

In 1990, the legislature again amended ORS 656.802(1). This time, the legislature enacted a general definition of the term "occupational disease," followed by the three categories that originated with the 1987 amendments:

"(1) As used in this chapter, `occupational disease' means any disease or infection arising out of and in the course of employment caused by substances or activities to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment therein, and which requires medical services or results in disability or death, including:

"(a) Any disease or infection caused by ingestion of, absorption of, inhalation of or contact with dust, fumes, vapors, gases, radiation or other substances.

"(b) Any mental disorder which requires medical services or results in physical or mental disability or death.

"(c) Any series of traumatic events or occurrences which requires medical services or results in physical disability or death."

ORS 656.802(1) (1991). Once again, however, the legislature did not define the term "disease." And, once again, nothing in the language of the amended statute or its enactment history suggests that the legislature intended to abandon the definition of the term adopted in O...