Brad Garber’s Case Law Update – November 1st, 2007

On this date: The man who gave us good Irish stout, Sir Benjamin Lee Baronet Guinness, was born in 1798. Stephen Crane, author of “Red Badge of Courage,” was born in 1871. In 1935, South African golf pro, Gary Player, was born. “Hustler” magazine publisher, Larry Flynt, was born in 1942. Lyle Lovett was born in 1960. Pompei was buried in a Mt. Vesuvius eruption in 79 A.D. Michelangelo’s Sistine Chapel masterpiece was first exhibited in 1512. In 1765, the Stamp Act went into effect in British colonies. John Adams became the first U.S. President to live in the White House, in 1800. The first U.S. NHL franchise, the Boston Bruins, was founded in 1924. Seabiscuit beat War Admiral in a match race at Pimlico, in 1938. Charles Cooper became the first African American to play in the NBA, in 1950. The Beatles’ “Abbey Road” album went No. 1 on the charts and stayed there for 11 weeks, in 1969. The European Union came into existence in 1993.

AIG Claim Services v. Rios, 0408312; A132821 (October 31, 2007)

Claimant worked for the same employer from 1984 through 2001. During those years, the employer was insured by several different carriers. AIG was the insurer on the risk in 2001, when Claimant retired. In 2003, Claimant sought treatment from Dr. Lindgren, for binaural hearing loss. Dr. Lindgren told Claimant that he suffered from work-related hearing loss and recommended hearing aides. Claimant filed a claim for benefits and all insurers denied responsibility, only. I represented American Protection Ins. Co./Broadspire.

In about 1995, Claimant went to “Miracle Ear,” a hearing aide retailer with a kiosk in a Montgomery Ward department store. He went to “Miracle Ear” with the intent to purchase some ear plugs for work. While there, an unidentified employee gave him a free hearing test and told him that he had some hearing loss. The employee also recommended that he purchase hearing aides. Claimant did not purchase hearing aides.

After hearing, AIG was found responsible for Claimant’s condition under the Last Injurious Exposure Rule (LIER). AIG disputed its responsibility, contending that responsibility should be assigned to the insurer who provided coverage for the employer in 1995, when Claimant’s hearing was tested at “Miracle Ear.” AIG appealed the Opinion & Order to the Board and the Board affirmed the ALJ’s assignment of responsibility. AIG took the matter to the Court of Appeals. The issue was when Claimant first “sought or received” medical treatment, for purposes of assigning presumptive responsibility.

The Court found that Claimant was not “seeking” medical treatment when he went to “Miracle Ear.” The Court also found that it was unknown whether the person at “Miracle Ear” who tested Claimant’s hearing and made recommendations was authorized under the workers’ compensation laws to provide medical treatment., i.e., was an audiologist or licensed hearing aide specialist. Affirmed

Frank Seals, 59 Van Natta 2506 (2007)

(ALJ Ogawa)

Claimant worked as the Director of Engineering for the employer. On July 18, 2005, after working his regular shift, Claimant was called at home by the General Manager. He was asked to come in and move some newly delivered packages inside the employer’s building. Claimant complied with the request but allegedly injured his back in the process. He told the General Manager, the following morning, about his back injury but expressed no interest in pursuing a workers’ compensation claim.

On August 9, 2005, Claimant met with the General Manager to review some job performance issues. At that time, Claimant indicated that he wanted to file an injury report and seek treatment for his back. He filed such a report and sought treatment the following day. On about August 11, he voluntarily terminated his employment and filed a claim for benefits. When his claim was denied, he requested a hearing.

At the hearing, it was the employer’s contention that Claimant filed a claim for benefits in retaliation for his negative performance review by the employer. The ALJ agreed that Claimant’s credibility was suspect and that he did not establish the occurrence of a compensable injury to his back. Claimant requested review. On review, the Board noted that because the ALJ did not expressly make a demeanor-based credibility finding, it was free to examine the substance of Claimant’s testimony and make its own determination in that regard.

The Board observed, “… [M]otivation, such as filing a claim in retaliation for termination of employment, does not automatically preclude a finding of compensability.” See Floyd J. Wooton, 58 Van Natta 987, 988 (2006). Ultimately, even though there were some inconsistencies in Claimant’s testimony, the Board did not find them sufficient to defeat the claim where the record as a whole supported his testimony. See Westmoreland v. Iowa Beef Processors, 70 Or App 642 (1984), rev den, 298 Or 597 (1985). Reversed

Jon W. Pilgrim, 59 Van Natta 2539 (2007)

(ALJ Davis)

Claimant requested review from an order that upheld the self-insured employer’s de facto denial of his “new” occupational disease claim for bilateral hearing loss.

Claimant worked for 32 years in close proximity to aircraft. In 1995, he sought a hearing evaluation by Dr. Hodgson. Dr. Hodgson diagnosed noise-induce, bilateral, hearing loss, and recommended a trial of hearing aide use. Claimant filed a claim for benefits and the claim was accepted in 1996.

In 2005, Claimant returned to Dr. Hodgson and was found to have sustained a worsening of his bilateral hearing loss. The loss was attributed, by Dr. Hodgson, to Claimant’s occupational exposure. Claimant filed another claim for his hearing loss. The employer advised that Claimant’s claim was in “Own Motion,” and that he was entitled to “.245” benefits under his previously-accepted claim. It did not consider Claimant to “have a new occupational disease to be processed.” Claimant requested a hearing, alleging a de facto denial of his claim.

After hearing, ALJ Davis upheld the employer’s denial. He reasoned that “claimant’s successive claim with the same employer for hearing loss was based on a worsening of the preexisting compensable condition (also hearing loss), and concluded that claimant’s recent work exposure was not the major cause of a combined hearing loss condition and pathological worsening of the disease.” On review, the Board stated the issue as follows:

“The threshold issue is whether claimant’s current hearing loss ‘involves’ that previously accepted condition and, thus, presents a combined condition subject to ORS 656.802(2)(b). Claimant attempted to argue that his post-1996 hearing loss was separate and did not “combine” with his pre-1996 hearing loss. In finding this argument unpersuasive, the Board cited Multifoods Specialty Distribution v. McAtee, 164 Or App 654, 662 (1999), aff’d, 333 Or 629 (2002)(“[A] combined condition may, but need not, integrate or join together two distinct conditions. A combined condition may merely bring those conditions into a close relationship or cause them to associate ‘harmoniously.'”)” The Board found that Claimant’s “new” hearing loss had a close relationship to, or was harmoniously associated with, his prior hearing loss and that it had, therefore, “combined” with his preexisting hearing loss. It was Claimant’s burden to prove that his post-1996 exposure was the major contributing cause of his combined condition and need for treatment. He was unable to do that. Affirmed (Board Member Biehl wrote a 7-page dissent, so this one will probably go up to the Court of Appeals)

Brad G Garber
Wallace, Klor & Mann, P.C.
Oregon Bar 1987
US District Court 1988
Washington Bar 1993
US Ninth Circuit Court of Appeals 2000