In the Matter of the Compensation of Darrell Alcorn, Claimant.
THE LYNCH COMPANY, INC.; SAIF Corporation; and Darrell Alcorn, Respondents. LIBERTY METAL FABRICATORS, INC. and SAIF Corporation, Petitioners,
and submitted September 10, 2018
Workers' Compensation Board 1602391, 1602051
Rebecca A. Watkins argued the cause for petitioners. Also on
the briefs was Sather, Byerly & Holloway, LLP.
Masters argued the cause and fled the brief for respondents
The Lynch Company, Inc., and SAIF Corporation.
C. DiCicco waived appearance for respondent Darrell Alcorn.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Liberty Metal Fabricators seeks review of an order of the
Workers' Compensation Board holding it responsible for
claimant's hearing loss, contending that the board erred
in its application of the last injurious exposure rule.
Liberty contends that the board applied an incorrect legal
standard under the last injurious exposure rule in shifting
responsibility from The Lynch Company, Inc., the
presumptively responsible employer, to Liberty, based on
medical evidence stated in terms of "reasonable degree
of medical probability." Liberty further contends that a
medical opinion stating that there was a possibility that the
presumptive employer contributed to claimant's hearing
loss precludes a shifting of responsibility to Liberty.
Held: The board did not err. "Reasonable
medical probability" describes the level of proof
required to establish medical causation by a preponderance of
the evidence, and applies in determining medical causation in
the responsibility context. Although Liberty is correct [295
Or.App. 810] that there is medical evidence that it was
possible for claimant to have experienced one decibel of
hearing loss at Lynch, the board could reasonably interpret
the medical opinion, read as a whole, to support the finding
that, to a reasonable medical probability, claimant's
hearing loss was caused solely by employment conditions other
than the conditions at Lynch.
Or.App. 811] ARMSTRONG, P. J.
Liberty Metal Fabricators, Inc., (Liberty) seeks review of an
order of the Workers' Compensation Board holding it
responsible for claimant's hearing loss under the last
injurious exposure rule. We conclude that the board did not
err and therefore affirm.
summarize the largely undisputed pertinent facts from the
board's order. Claimant, a sheet metal fabricator, worked
for The Lynch Company (Lynch) from 1996 to 2006, for Liberty
from 2006 to June 2014, and again for Lynch from June 2014
until his retirement in November 2014. In February 2016,
claimant sought treatment for hearing loss and filed an
occupational disease claim with Lynch and then with Liberty.
Lynch's request, claimant was evaluated by Dr. Lipman, an
otolaryngologist. Lipman opined that claimant's life-long
occupational exposure to noise in the metal-fabrication
industry was the major contributing cause of his hearing
loss. Claimant had had an audiogram in June 2014, before
beginning his second period of employment with Lynch, and a
second audiogram in April 2016, when he first saw Lipman.
Lipman opined that there had been no appreciable change in
claimant's hearing loss during the second period of
employment with Lynch and that it was impossible for
claimant's second period of employment with Lynch to have
caused or contributed to his hearing loss. Lipman
subsequently opined on cross-examination in deposition that
it was possible that claimant had sustained a one decibel
change in his hearing during his second period of employment
with Lynch but that such a loss is not measurable.
Additionally, he testified that a change of less than five
decibels is disregarded as falling within "test-retest
Liberty and Lynch conceded the compensability of
claimant's hearing loss but denied responsibility for the
claim, and claimant requested a hearing on both denials. In
determining that Liberty is responsible for claimant's
hearing loss, the board cited the last injurious exposure
rule, under which "presumptive responsibility" for
an occupational disease claim is assigned to the most recent
[295 Or.App. 812] potentially causal employer for whom the
claimant worked or was working at the time that the claimant
first sought or received treatment. Waste Management v.
Pruitt,224 Or.App. 280, 286, 198 P.3d 429 (2008),
rev den,346 Or. 66 (2009). A presumptively
responsible employer may shift responsibility to a prior
employer by establishing that (1) it was impossible for
conditions at its workplace to have caused or worsened the
disease, or (2) the disease was caused or worsened by
conditions at one or more previous employments.
Beneficiaries of Strametz v. Spectrum Motorwerks,325 Or. 439, 444-45, 939 P.2d 617 (1997); Roseburg Forest
Products v. Long,325 ...