In the Matter of the Compensation of Jarrod S. Dunn, Claimant.
Jarrod S. DUNN, Respondent. SAIF CORPORATION and ES&A Sign Corp., Petitioners,
and submitted October 26, 2017.
Workers' Compensation Board 1505856, 1402444, 1402233;
Schooler argued the cause and fled the brief for petitioners.
Correll appeared for respondent Jarrod S. Dunn.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
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.
Or.App. 243] EGAN, C. J.
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.
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
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.
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.
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.
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
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, ...