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In re Compensation of Baker

Court of Appeals of Oregon

June 19, 2013

In the Matter of the Compensation of Charles J. Baker, Claimant.
v.
LIBERTY NORTHWEST INSURANCE CORPORATION, FRAHLER ELECTRIC, SAIF CORPORATION, and EC COMPANY. Respondents. CHARLES J. BAKER, Petitioner,

Argued and submitted on January 25, 2011; reassigned April 3, 2013

Workers' Compensation Board 0701646, 0701564

Edward J. Hill argued the cause and filed the briefs for petitioner.

David O. Wilson argued the cause and filed the brief for respondents Liberty Northwest Insurance Corporation and Frahler Electric.

David L. Runner argued the cause for respondents SAIF Corporation and EC Company. On the brief was Julene M. Quinn.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.

SCHUMAN, P. J.

Claimant seeks review of an order of the Workers' Compensation Board determining that his occupational disease claim for a left shoulder condition was untimely under ORS 656.807(1). We affirm.

Claimant is a journeyman electrician who has worked for multiple employers since 1997. He worked for Frahler Electric, Liberty Northwest's insured, for a period of approximately seven and one-half months in 2002. In the spring of 2002, while working for Frahler, claimant began to experience left shoulder pain. After an MRI, Dr. Sedgewick diagnosed left shoulder posterior subluxation and glenohumeral degenerative joint disease. In January 2003, Sedgewick performed a left shoulder surgery. Sedgewick's post-surgical reports noted that claimant's left shoulder was "pretty dog gone worn out * * * from his activities as an electrician." Sedgewick informed claimant that his work was the cause of his shoulder disease. Claimant did not file a claim for workers' compensation benefits at that time because he was concerned about the stigma associated with filing a claim.

Claimant returned to regular work activities as a journeyman electrician for a different employer in June 2003, performing his regular job duties without limitations and experiencing only occasional, insignificant soreness in his left shoulder. Beginning in July 2005, claimant worked for EC Company, SAIF Corporation's insured. In September 2005, he began to experience increased symptoms in his left shoulder, including pain and grinding. Claimant received chiropractic treatment for left shoulder symptoms from October 2005 through April 2006, and reported to the chiropractor that increased overhead work was causing his shoulder pain/soreness. Claimant had an MRI in December 2006, and Dr. Huebert diagnosed a partial tear of the supraspinatus tendon, a long tear of the glenoid labrum, a large defect in the articular cartilage of the glenoid, and moderate to severe glenohumeral degenerative joint disease.

In January 2007, claimant saw Dr. Irvine, an orthopedic surgeon, who diagnosed post-traumatic left shoulder osteoarthritis "as a result of an occupational disease and repetitive overuse in a 47-year-old electrician." Irvine believed that claimant's work activities were the major contributing cause of his left shoulder condition and recommended conservative treatment and a change of occupation. He also discussed the possible future need for a left shoulder "arthroplasty, " or shoulder replacement. In January 2007, claimant filed a claim for an occupational disease against both Liberty Northwest's insured Frahler Electric, and SAIF's insured, EC Company.

On SAIF's behalf, claimant was examined by Dr. Bald, who diagnosed moderately severe degenerative osteoarthritis. Bald opined that claimant's work activities were a "very definite contribution, " but could not say whether work was the major contributing cause of the condition, because claimant had little or no osteoarthritis in his dominant right shoulder. Sedgewick concurred in Bald's opinion. Both SAIF and Liberty Northwest denied compensability and responsibility for claimant's occupational disease claim for a left shoulder condition, and claimant requested a hearing.

In the meantime, Irvine performed an elective left shoulder replacement. In contrast to Sedgewick and Bald, Irvine opined that the major contributing cause of claimant's shoulder condition was his work as an electrician. Irvine opined that, because claimant equally used both arms in an overhead position, it was expected that the dominant shoulder would serve a protective function, and it was therefore not surprising that claimant would have more damage to the nondominant, left shoulder.

An administrative law judge (ALJ) found that Irvine's opinion was more persuasive and determined that claimant had established the compensability of his condition under the substantive rule of liability aspect of the last injurious exposure rule, by proving that the left shoulder condition resulted from employment in general. As for which insurer was responsible, the ALJ determined that, although Liberty Northwest's insured, Frahler Electric, was presumptively responsible because claimant first sought and received medical treatment while at that employment, see Agricomp Ins. v. Tapp, 169 Or.App. 208, 212-13, 7 P.3d 764, rev den, 331 Or 244 (2000), Liberty Northwest had succeeded in establishing that responsibility should shift forward to SAIF, as the insurer for the last employment that actually contributed to a worsening of claimant's left shoulder condition, see Oregon Boiler Works v. Lott, 115 Or.App. 70, 74, 836 P.2d 756 (1992). Accordingly, the ALJ assigned responsibility for claimant's condition to SAIF and set aside SAIF's denial of the claim and affirmed Liberty Northwest's denial of the claim.

At the hearing, both Liberty Northwest and SAIF had asserted that the occupational disease claims were void because each claim was untimely. The ALJ concluded that the issue of timeliness was moot as to Liberty Northwest, because Liberty Northwest was not responsible for the claim. As to SAIF, the ALJ concluded that SAIF had essentially abandoned the untimeliness defense in written closing arguments. Thus, the ALJ did not rule on whether claimant had timely filed his occupational disease claims.

SAIF appealed to the board. The board did not reach the merits of the claim. Instead, with one member dissenting, the board determined that the occupational disease claim, filed with SAIF in 2007, was untimely under ORS 656.807(1), because the claim had not been filed within one year of the date claimant was informed by Sedgewick in 2003 that he was suffering from an occupational disease. The board rejected claimant's contention that the claim was timely under this court's opinions in Ahlberg v. SAIF, 199 Or.App. 271, 111 P.3d 778 (2005), and Kepford v. Weyerhaeuser Co., 77 Or.App. 363, 713 P.2d 625, rev den, 300 Or 722 (1986), reinstated SAIF's denial, and reversed the ALJ's order. The board also upheld Liberty Northwest's denial. One board member dissented, reasoning that claimant's work exposure after his 2003 diagnosis had contributed to claimant's left shoulder condition to the extent that the current claim was a new occupational disease--distinct from the condition that existed in 2003--and therefore not barred by ORS 656.807.

Claimant seeks judicial review of the board's order, arguing that the board's interpretation of the occupational disease statutes was incorrect. We review the board's statutory ...


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