54 Van Natta 281 (2002). JAMES BURTON, Claimant.

• Case Date: May 07, 2002
• Court: Oregon

Oregon Worker Compensation 2002. 54 Van Natta 281 (2002). JAMES BURTON, Claimant 281In the Matter of the Compensation of JAMES BURTON, ClaimantWCB Case No. 00-09045ORDER ON REVIEWWelch Bruun and Green, Claimant AttorneysMark P Bronstein, Defense AttorneysReviewing Panel: Members Phillips Polich, Bock, and Biehl.1The self-insured employer requests review of Administrative Law Judge Fulsher's order that set aside its denial of claimant's injury/occupational disease claim for a pulmonary condition. On review, the issue is compensability. We adopt and affirm the ALJ's order with the following supplementation. Claimant, a carpenter, began working for the employer on October 16, 2000. (Tr. 10). The job site where claimant worked was a 7-floor building undergoing a seismic upgrade, which included, among other things, the use of jackhammers. (Tr. 48; 53 to 55). Dust masks were available at the job site for workers who wanted to use them. (Tr. 52 to 53). Claimant did not use the masks. (Tr. 30). Claimant was exposed to concrete dust on October 19, 20, 21, 23, 24, and 25. (Tr. 10 to 14). Claimant was laid off on October 27, 2000. (Tr. 55). Claimant was upset about the lay off and indicated he would file a workers' compensation claim. (Tr. 56). On October 30, 2000, claimant saw Dr. Hawkins (an allergy and immunology specialist) for complaints of shortness of breath and a productive cough. (Exs. 23; 33). An initial pulmonary function test showed "some significant obstruction." (Id.) Dr. Hawkins diagnosed mineral dust small airways disease (MDAD) and reported that "[T]his is clearly a noxious inhalation substance." (Id.) The same day, claimant filed a claim for his pulmonary condition. (Ex. 22). The employer denied the claim on November 14, 2000. (Ex. 26). Claimant requested a hearing. 1 After consultation with the Department of Justice, this Board has chosen to exercise its right to issue orders as a panel of three pursuant to ORS 656.718(2) and (3). 54 Van Natta 281 (2002)282The ALJ determined that claimant's pulmonary condition arose over a discrete six-day time period. Relying on Jeld-Wen, Inc. v. Molena, 166 Or App 396, rev den 330 Or 336 (2000) and Weyerhauser v. Woda, 166 Or App 73, rev den 330 Or 36 (2000), the ALJ reasoned that claimant's pulmonary condition should be analyzed as an injury. The ALJ determined...