In re Compensation of Burlington, 041719 ORWC, 17-02218

Docket Nº:WCB 17-02218, 16-02207, 16-02055, 16-00531
Case Date:April 17, 2019
Court:Oregon
 
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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...

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