71 Van Natta 408 (2019)
In the Matter of the Compensation of JOHN M. BURLINGTON, Claimant
WCB Nos. 17-02218, 16-02207, 16-02055, 16-00531
Oregon Worker Compensation
April 17, 2019
Alana
C Dicicco Law, Claimant Attorneys
Reinisch Wilson Weier, Defense Attorneys
MacColl Busch Sato PC, Defense Attorneys
SAIF
Legal Salem, Defense Attorneys
Tolleson Conratt Nielsen et al, Defense Attorneys
Reviewing Panel: Members Lanning and Woodford.
ORDER ON REVIEW
Express/Sedgwick
Claims Management requests review of those portions of
Administrative Law Judge (ALJ) Naugle’s order that: (1)
set aside its denial of claimant’s occupational disease
claim for bilateral hearing loss; (2) upheld denials of
claimant’s occupational disease claims for the same
condition issued by Gallagher Bassett Insurance Services,
Inc., the SAIF Corporation, and Intermountain Claims, Inc.;
and (3) awarded a $20,000 attorney fee award under ORS
656.386(1), payable by Express/Sedgwick. On review, the
issues are responsibility and attorney fees.
We
adopt and affirm the ALJ’s order with the following
supplementation.
The ALJ
applied the Last Injurious Exposure Rule (LIER) in setting
aside Express/Sedgwick’s responsibility denial. Finding
that claimant had first sought treatment for his hearing loss
condition most recent to his work for Express/ Sedgwick, the
ALJ assigned initial responsibility to that employer. The ALJ
reasoned that the medical evidence was insufficient to
establish that claimant’s previous employment was the
sole cause of his condition or that it was impossible for his
work with Express/Sedgwick’s insured to have
contributed to his condition. Consequently, the ALJ concluded
that responsibility for claimant’s bilateral hearing
loss condition did not shift to a previous carrier. Finally,
the ALJ awarded attorney fees under ORS 656.308(2)(d) and ORS
656.386(1), payable by Express/Sedgwick.
Responsibility
On
review, Express/Sedgwick contends that the ALJ should not
have resorted to “LIER” because the record
establishes “actual causation”; i.e.,
that claimant’s work exposure with an earlier employer
(Gallagher’s insured) was the major contributing cause
of claimant’s hearing loss, and that his subsequent [71
Van Natta 409] exposure with Express/Sedgwick’s insured
did not independently contribute to a worsening of the
condition. In doing so, Express/Sedgwick acknowledges that
claimant did not attempt to prove “actual
causation” for compensability purposes for his
occupational disease claim, but it argues that there is no
such requirement before “actual causation” can be
asserted for responsibility purposes. For the following
reasons, we disagree.
As to
responsibility, the LIER assigns “presumptive
responsibility” for an occupational disease to the most
recent potentially causal employer for whom the claimant
worked or was working at the time...
