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In re Compensation of Dunn

Court of Appeals of Oregon

August 8, 2018

In the Matter of the Compensation of Jarrod S. Dunn, Claimant.
v.
Jarrod S. DUNN, Respondent. SAIF CORPORATION and ES&A Sign Corp., Petitioners,

          Argued and submitted October 26, 2017.

          Workers' Compensation Board 1505856, 1402444, 1402233; A163952

          Elaine Schooler argued the cause and fled the brief for petitioners.

          Jon C. Correll appeared for respondent Jarrod S. Dunn.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: SAIF, as insurer for claimant's current employer, ES&A, seeks review of an order of the Workers' Compensation Board assigning it responsibility for claimant's occupational disease claim and asserts that claimant's former employer, Ray-O-Lite, also SAIF's insured, is responsible under ORS 656.308(1). Held: Under ORS 656.308(1), presumptive responsibility for an occupational disease remains with the employer with an accepted claim for the occupational disease. Here, claimant experienced a new occupational disease while working for ES&A; thus, ORS 656.308 does not apply to assign presumptive responsibility to Ray-O-Lite.

         [293 Or.App. 243] EGAN, C. J.

         In this workers' compensation case, SAIF, as the insurer for claimant's current employer, ES&A, seeks review of an order of the Workers' Compensation Board assigning it responsibility for claimant's occupational disease claim and asserts that claimant's former employer, Ray-O-Lite, also SAIF's insured, is responsible. We conclude that the board did not err and therefore affirm.

         Claimant has had several back injuries, the first one occurring in 2004, when claimant was working as a sign installer for SAIF's insured Ray-O-Lite. Claimant felt sudden pain while lifting a 350-pound compressor. SAIF, on behalf of Ray-O-Lite, accepted a claim for a strain and an L4-5 disc herniation, and claimant had surgery in 2005 to repair the disc herniation.

         Claimant's job as a sign installer involves heavy labor. After his surgery, claimant had occupational therapy, with the goal of training him for a lighter job, but claimant did not complete the training. SAIF closed the claim in 2008 with an award of permanent partial disability, and, in 2009, claimant returned to work as a sign installer for SAIF's insured ES&A.

         Claimant experienced two injuries while working for ES&A. In 2013, while using a jackhammer to break up concrete, claimant developed persistent intense pain that has not gone away. He did not immediately seek medical attention for that injury, however. In 2014, claimant developed disabling back pain after pulling a sign face out of a sign. He went to the emergency room following that incident. An MRI taken at that time was reported to show conditions similar to those shown on an MRI taken in 2006, after claimant's 2005 surgery. Based on the 2014 MRI, Dr. Keiper, who had performed claimant's first surgery, recommended another surgery to repair what he believed was a disc herniation and spinal stenosis. Claimant filed injury claims with SAIF as insurer for ES&A for the 2013 and 2014 injuries. SAIF denied the claims, and claimant requested a hearing.

         Claimant also filed a claim with SAIF as insurer for Ray-O-Lite, seeking a reopening of the 2004 claim to be [293 Or.App. 244] compensated for the surgery and asserting that the accepted 2004 disc herniation was a material contributing cause of his need for treatment.

         On behalf of SAIF, Drs. Hammel and Ackerman opined that claimant's condition was arthritic and had developed independently of the 2013 and 2014 injuries. Dr. Rosenbaum, a neurosurgeon, examined claimant at SAIF's request and opined that the 2014 MRI report did not describe a disc herniation. He opined that claimant's condition at that time was not related to work and did not bear any relationship to the 2004 injury; rather, it was due to preexisting lumbar spondylosis and prominent functional overlay.

         In September 2014, SAIF, as insurer for Ray-O-Lite, denied claimant's claim for surgical treatment. In January 2015, an administrative law judge (ALJ) upheld SAIF's denial of a reopening of the claim against Ray-O-Lite, concluding that claimant's need for treatment was not materially related to the 2004 injury; rather, ...


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