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In re The Compensation of Durant

Court of Appeals of Oregon

May 13, 2015

In the Matter of the Compensation of Jerry F. Durant, Claimant.
v.
Jerry F. DURANT; McKinstry Company, LLC; SAIF Corporation; and Harder Mechanical-Intel OCIP, Respondents SAIF CORPORATION; and MPP Piping, Inc., Petitioners,

Argued and Submitted January 9, 2015.

1105489, 1105488, 1103416. Workers' Compensation Board.

David L. Runner argued the cause and filed the briefs for petitioners.

Jerald P. Keene argued the cause for respondent Harder Mechanical-Intel OCIP. With him on the brief was Oregon Workers' Compensation Institute, LLC.

Thaddeus J. Hettle filed the brief for respondent McKinstry Company, LLC-SAIF Corporation.

No appearance for respondent Jerry F. Durant.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

Page 490

[271 Or.App. 218] FLYNN, J.

Petitioners SAIF Corporation and its insured, MPP Piping, Inc. (MPP),[1] seek review of an order of the Workers' Compensation Board that found MPP responsible for claimant's 2011 shoulder condition as a consequential condition of claimant's 2006 shoulder injury at MPP. MPP contends that the board erred by refusing to apply the last

Page 491

injurious exposure rule (LIER) to shift responsibility for the admittedly work-related shoulder condition to a later employer. MPP also contends that the board erred in concluding that claimant's compensable injury was the major contributing cause of his 2011 shoulder condition. We conclude that substantial evidence supports the board's finding that claimant's 2006 injury was the major contributing cause of his full rotator cuff tear and that, based on that finding, the board properly classified the claim as a consequential condition for which MPP is liable. Accordingly, we affirm.

We state the facts consistently with the board's unchallenged factual findings. Sparling v. Providence Health System Oregon, 258 Or.App. 275, 276, 308 P.3d 1103 (2013). Claimant, who worked for MPP as a pipefitter, suffered a workplace injury in November 2006, which SAIF accepted as a " right shoulder strain." In March 2007, Dr. Sedgewick performed surgery on claimant's right shoulder, during which he diagnosed " impingement and partial tear of the rotator cuff" and performed " arthroscopic subacromial decompression." He described the partial rotator cuff tear as it existed at the time of surgery as a " 25% tearing." After the surgery, claimant worked as a pipefitter for two subsequent employers--McKinstry Company and Harder Mechanical.[2] The pipe-fitting work was physically demanding.

Claimant began to experience increasing discomfort in his right shoulder. In April 2011, he returned to Sedgewick, and an MRI revealed a full thickness tear of the rotator cuff. Claimant filed a new or omitted condition claim with MPP for his right rotator cuff tear with impingement, [271 Or.App. 219] and SAIF denied responsibility for the claim. Claimant then filed an occupational disease claim for the condition with employers McKinstry Company, also insured by SAIF, and Harder Mechanical, insured by ...


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