compensable claim in Oregon

2022Since Wright, the board has understood that a pay- ing agency is an insurer or self-insured employer responsible Cite as 318 Or App 38 (2022) 47 for paying benefits on a compensable claim at the time of the claimant’s settlement with the third party.

2022In reliance on SAIF v. Wright, 113 Or App 267 , 832 P2d 1238 (1992), and the board’s own subsequent caselaw, the board reasoned that an insurer is a paying agency only when, at the time of the worker’s settlement with the third party, the insurer is paying benefits on a compensable claim.

2022In reliance on SAIF v. Wright, 113 Or App 267 , 832 P2d 1238 (1992), and the board’s own subsequent caselaw, the board reasoned that an insurer is a paying agency only when, at the time of the worker’s settlement with the third party, the insurer is paying benefits on a compensable claim.

2020Corp., 268 Or App 325, 330 , 341 P3d 220 (2014) (obli- gation to pay benefits is triggered “when an objectively rea- sonable insurer or self-insured employer would understand Cite as 308 Or App 201 (2020) 209 contemporaneous medical reports to signify approval excus- ing the worker from work”).

2020Corp., 268 Or App 325, 330 , 341 P3d 220 (2014) (obli- gation to pay benefits is triggered “when an objectively rea- sonable insurer or self-insured employer would understand Cite as 308 Or App 201 (2020) 209 contemporaneous medical reports to signify approval excus- ing the worker from work”).

2020Corp., 268 Or App 325, 330 , 341 P3d 220 (2014) (obli- gation to pay benefits is triggered “when an objectively rea- sonable insurer or self-insured employer would understand Cite as 308 Or App 201 (2020) 209 contemporaneous medical reports to signify approval excus- ing the worker from work”).

2011See also Dethlefs v. Hyster Co., 295 *318 Or 298, 307, 667 P2d 487 (1983) (stating, without elaboration, that “It should also be kept in mind that a disease or infection may give rise to a compensable claim for injury rather than for occupational disease.”); K-Mart v. Evenson, 167 Or App 46 , 1 P3d 477 , rev den, 331 Or 191 (2000) (analyzing claim as an industrial injury where a worker was put at risk of possible infection by HIV and hepatitis when her hands, which had sores on them, were exposed to a customer’s bodily fluids).

2011See also Dethlefs v. Hyster Co., 295 *318 Or 298, 307, 667 P2d 487 (1983) (stating, without elaboration, that “It should also be kept in mind that a disease or infection may give rise to a compensable claim for injury rather than for occupational disease.”); K-Mart v. Evenson, 167 Or App 46 , 1 P3d 477 , rev den, 331 Or 191 (2000) (analyzing claim as an industrial injury where a worker was put at risk of possible infection by HIV and hepatitis when her hands, which had sores on them, were exposed to a customer’s bodily fluids).

2002In Reynolds Metals v. Rogers, 157 Or App 147, 153 , 967 P2d 1251 (1998), rev den 328 Or 365 (1999), we explained the last injurious exposure rule: “There are, at least, two aspects of [the last injurious exposure rule]: (1) proof of a compensable claim, and (2) assignment of liability between insurers. [The last injurious exposure rule] allows the injured worker to establish compensability based on all employment-related exposure without proving causation against any particular employer or insurer.

2002In Reynolds Metals v. Rogers, 157 Or App 147, 153 , 967 P2d 1251 (1998), rev den 328 Or 365 (1999), we explained the last injurious exposure rule: “There are, at least, two aspects of [the last injurious exposure rule]: (1) proof of a compensable claim, and (2) assignment of liability between insurers. [The last injurious exposure rule] allows the injured worker to establish compensability based on all employment-related exposure without proving causation against any particular employer or insurer.

1997All claimant must show to establish a compensable claim is that conditions at the Oregon employer were of the type that could have caused the disease.” id. at 71 .

1995On reconsideration, and relying on our opinion in SAIF v. Allen, 124 Or App 183 , 861 P2d 1018 (1993), the Board withdrew the award of attorney fees, reasoning that the dispute concerned only the payment of medical bills related to a compensable claim.

1995On reconsideration, and relying on our opinion in SAIF v. Allen, 124 Or App 183 , 861 P2d 1018 (1993), the Board withdrew the award of attorney fees, reasoning that the dispute concerned only the payment of medical bills related to a compensable claim.

1995Accord Bracke, 293 Or. at 248-49 , 646 P.2d 1330 ; Fossum v. SAIF, 293 Or. 252 , 646 P.2d 1337 (1982); Meyer v. SAIF, 71 Or.App. 371 , 692 P.2d 656 (1984), rev. den. 299 Or. 203 , 700 P.2d 251 (1985); but see FMC Corp. v. Liberty Mutual Ins.

1995Accord Bracke, 293 Or. at 248-49 , 646 P.2d 1330 ; Fossum v. SAIF, 293 Or. 252 , 646 P.2d 1337 (1982); Meyer v. SAIF, 71 Or.App. 371 , 692 P.2d 656 (1984), rev. den. 299 Or. 203 , 700 P.2d 251 (1985); but see FMC Corp. v. Liberty Mutual Ins.

1995Accord Bracke, 293 Or. at 248-49 , 646 P.2d 1330 ; Fossum v. SAIF, 293 Or. 252 , 646 P.2d 1337 (1982); Meyer v. SAIF, 71 Or.App. 371 , 692 P.2d 656 (1984), rev. den. 299 Or. 203 , 700 P.2d 251 (1985); but see FMC Corp. v. Liberty Mutual Ins.

1995Accord Bracke, 293 Or. at 248-49 , 646 P.2d 1330 ; Fossum v. SAIF, 293 Or. 252 , 646 P.2d 1337 (1982); Meyer v. SAIF, 71 Or.App. 371 , 692 P.2d 656 (1984), rev. den. 299 Or. 203 , 700 P.2d 251 (1985); but see FMC Corp. v. Liberty Mutual Ins.

1994In this initial claim context, the question is whether claimant has a compensable claim at all and, if so, whether Siltec is the responsible employer. [2] The dissent takes a different tack, concluding that the reason for applying the last injurious exposure rule does not exist in this case, because claimant attributed a portion of his hearing loss to his employment with Caterpillar. 128 Or.App. at 80 , 875 P.2d at 1181 .

1994In this initial claim context, the question is whether claimant has a compensable claim at all and, if so, whether Siltec is the responsible employer. [2] The dissent takes a different tack, concluding that the reason for applying the last injurious exposure rule does not exist in this case, because claimant attributed a portion of his hearing loss to his employment with Caterpillar. 128 Or.App. at 80 , 875 P.2d at 1181 .

1988This case is unlike AMFAC, Inc. v. Ingram, 72 Or App 168 , 694 P2d 1005 (1985), where the parties did not agree that the symptoms were the disease and the preponderance of the medical evidence established that the claimant had a pre-existing, asymptomatic carpal tunnel disease and that her work did not cause a worsening of that underlying condition. *173 The board erred, however, when it held that claimant’s occupational disease was not a compensable claim because it required only diagnostic medical services.

1988This case is unlike AMFAC, Inc. v. Ingram, 72 Or App 168 , 694 P2d 1005 (1985), where the parties did not agree that the symptoms were the disease and the preponderance of the medical evidence established that the claimant had a pre-existing, asymptomatic carpal tunnel disease and that her work did not cause a worsening of that underlying condition. *173 The board erred, however, when it held that claimant’s occupational disease was not a compensable claim because it required only diagnostic medical services.

1988Former ORS 656.005(8)(a) defines a compensable injury as “an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death.” As pertinent here, occupational diseases are considered “injuries.” ORS 656.804; Runft v. SAIF, 303 Or 493, 498 , 739 P2d 12 (1987).

1988Former ORS 656.005(8)(a) defines a compensable injury as “an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death.” As pertinent here, occupational diseases are considered “injuries.” ORS 656.804; Runft v. SAIF, 303 Or 493, 498 , 739 P2d 12 (1987).

1987The decisions of the Court of Appeals and of the Board are reversed, and this matter is remanded to the Board for entry of an order holding SAIF responsible for payment of any compensation to which claimant may be entitled. 1 We have serious doubts that the phrase, “without waiving other questions of compensability,” in the last sentence of this letter of denial should have any efficacy in light of OAR 436-54-305(4), which apparently was then in effect and provided: “The notice of denial in compliance with OAR 436-83 shall: “(a) specify the factual and legal reasons for denial; <<*****” OAR 43

1987The decisions of the Court of Appeals and of the Board are reversed, and this matter is remanded to the Board for entry of an order holding SAIF responsible for payment of any compensation to which claimant may be entitled. 1 We have serious doubts that the phrase, “without waiving other questions of compensability,” in the last sentence of this letter of denial should have any efficacy in light of OAR 436-54-305(4), which apparently was then in effect and provided: “The notice of denial in compliance with OAR 436-83 shall: “(a) specify the factual and legal reasons for denial; <<*****” OAR 43

1987The decisions of the Court of Appeals and of the Board are reversed, and this matter is remanded to the Board for entry of an order holding SAIF responsible for payment of any compensation to which claimant may be entitled. 1 We have serious doubts that the phrase, “without waiving other questions of compensability,” in the last sentence of this letter of denial should have any efficacy in light of OAR 436-54-305(4), which apparently was then in effect and provided: “The notice of denial in compliance with OAR 436-83 shall: “(a) specify the factual and legal reasons for denial; <<*****” OAR 43

1987The decisions of the Court of Appeals and of the Board are reversed, and this matter is remanded to the Board for entry of an order holding SAIF responsible for payment of any compensation to which claimant may be entitled. 1 We have serious doubts that the phrase, “without waiving other questions of compensability,” in the last sentence of this letter of denial should have any efficacy in light of OAR 436-54-305(4), which apparently was then in effect and provided: “The notice of denial in compliance with OAR 436-83 shall: “(a) specify the factual and legal reasons for denial; <<*****” OAR 43

1984We grant the petition in the light of McGarrah v. SAIF, 296 Or 145 , 675 P2d 159 (1983).

1984We grant the petition in the light of McGarrah v. SAIF, 296 Or 145 , 675 P2d 159 (1983).

1983James v. SAIF, supra, 290 Or at 348 .

1983In Likens v. SAIF, 56 Or App 498 , 642 P2d 342 (1982), the Board had disallowed interim compensation, because there was no proof that the claimant was off work or entitled to time off during the time in question, although the Board recognized that under Jones failure to prove a compensable claim did not defeat a claimant’s right to interim compensation.

1983In Likens v. SAIF, 56 Or App 498 , 642 P2d 342 (1982), the Board had disallowed interim compensation, because there was no proof that the claimant was off work or entitled to time off during the time in question, although the Board recognized that under Jones failure to prove a compensable claim did not defeat a claimant’s right to interim compensation.

1983Although there was no explicit holding in Grable that the second off-the-job injury was also a material contributing cause of the worsened condition, the opinion suggests that a claimant who is subsequently injured off-the-job makes out a compensable claim for workers’ compensation benefits for a worsening of the original injury merely by establishing that the prior compensable injury was a “material contributing cause” of the worsened condition, even if the second injury is also a “material contributing cause.” 291 Or at 400-01 .

1981Claimant urges that one rule of law has been established in a line of cases culminating in Standley v. SAIF, 8 Or App 429 , 495 P2d 283 (1972), that where there is a worsening of the worker’s condition resulting from a compensable injury following an off-the-job activity, and the worsening requires medical services or results in disability, the claimant makes out a compensable claim for benefits for that worsening if the claimant establishes that the prior compensable injury was a “material contributing cause” of the worsened condition.

1981Claimant urges that one rule of law has been established in a line of cases culminating in Standley v. SAIF, 8 Or App 429 , 495 P2d 283 (1972), that where there is a worsening of the worker’s condition resulting from a compensable injury following an off-the-job activity, and the worsening requires medical services or results in disability, the claimant makes out a compensable claim for benefits for that worsening if the claimant establishes that the prior compensable injury was a “material contributing cause” of the worsened condition.

1981Claimant interprets the *392 Court of Appeals decision in Christensen v. SAIF, 27 Or App 595 , 557 P2d 48 (1976), as standing for a conflicting rule that a claimant has the burden to establish that the worsening of the condition resulting from the prior compensable injury was not the result of an independent, nonindustrial cause.

1981Claimant interprets the *392 Court of Appeals decision in Christensen v. SAIF, 27 Or App 595 , 557 P2d 48 (1976), as standing for a conflicting rule that a claimant has the burden to establish that the worsening of the condition resulting from the prior compensable injury was not the result of an independent, nonindustrial cause.

1980On August 1, 1978 (after the motion for an ORS 656.307 hearing but before the hearing itself), this court decided Weller v. Union Carbide, 35 Or App 355 , 582 P2d 8 (1978), 2 which held that to establish a compensable claim for a degenerative spinal condition, the claimant had to show that his work had caused or materially worsened his condition as opposed to merely increasing the symptoms (i.e., pain). 35 Or App at 359-60 .

1980On August 1, 1978 (after the motion for an ORS 656.307 hearing but before the hearing itself), this court decided Weller v. Union Carbide, 35 Or App 355 , 582 P2d 8 (1978), 2 which held that to establish a compensable claim for a degenerative spinal condition, the claimant had to show that his work had caused or materially worsened his condition as opposed to merely increasing the symptoms (i.e., pain). 35 Or App at 359-60 .

1975WMle we have recognized the proposition that a preexisting condition may become compensable where the on-the-job injury produces symptoms which *595 “mask” manifestations of the earlier condition to the patient’s detriment, Waibel v. State Compensation Dept., 3 Or App 38 , 471 P2d 826 (1970), such, according to the medical testimony, is clearly not established here.

1975WMle we have recognized the proposition that a preexisting condition may become compensable where the on-the-job injury produces symptoms which *595 “mask” manifestations of the earlier condition to the patient’s detriment, Waibel v. State Compensation Dept., 3 Or App 38 , 471 P2d 826 (1970), such, according to the medical testimony, is clearly not established here.

1975See, 1 Larson, The Law of Workmen’s Com pensation, § 27.32, n 24 (1972); Sill v. Industrial Commission, 12 Ariz App 6, 467 P2d 81 (1970).