Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Compensation of Alcorn

Court of Appeals of Oregon

January 30, 2019

In the Matter of the Compensation of Darrell Alcorn, Claimant.
v.
THE LYNCH COMPANY, INC.; SAIF Corporation; and Darrell Alcorn, Respondents. LIBERTY METAL FABRICATORS, INC. and SAIF Corporation, Petitioners,

          Argued 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.

          Julie Masters argued the cause and fled the brief for respondents The Lynch Company, Inc., and SAIF Corporation.

          Alana C. DiCicco waived appearance for respondent Darrell Alcorn.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Employer 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.

         Affirmed.

         [295 Or.App. 811] ARMSTRONG, P. J.

         Employer 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.

         We 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.

         At 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 variability."

         Both 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.