72 Van Natta 55 (2020)
In the Matter of the Compensation of THOMAS L. CHENOWETH, Claimant
WCB No. 18-03406
Oregon Worker Compensation
January 15, 2020
Alana
C Dicicco Law, Claimant Attorneys.
Reinisch Wilson Weier, Defense Attorneys.
Reviewing Panel: Members Curey and Lanning.
ORDER
ON REVIEW
The
insurer requests review of Administrative Law Judge (ALJ)
Marshall’s order that: (1) closed the hearing record
without allowing a deposition of a physician it had
requested; (2) set aside its responsibility denial of
claimant’s occupational disease claim for a bilateral
hearing loss condition; and (3) awarded an $8,000
insurer-paid attorney fee under ORS 656.308(2)(d). On review,
the issues are the ALJ’s evidentiary ruling,
subjectivity, responsibility, and attorney fees. We reverse.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact” with the
following summary and supplementation.[1]
Claimant
worked for Dawes, a trucking company (for which the insurer
provided coverage in 2001-02), loading and unloading
long-haul trucks for shipping. (Ex. B-3; Tr. 5).
Claimant
subsequently worked for another employer (Cascade General) in
2002-03, until he retired. (Id.) During that
employment, claimant was a quality control coating and
sandblast inspector. (Tr. 7). He repaired ships and ship
parts. (Id.)
Cascade
General had workers’ compensation insurance coverage
during claimant’s employment. (Ex. A-3).
[72 Van
Natta 56] Claimant filed an occupational disease claim with
Cascade General for a hearing loss condition, which was
denied. Although claimant initially filed a hearing request
regarding the denial, he subsequently withdrew that request.
Therefore, Cascade General is not a party to this proceeding.
Claimant
also filed an LHWCA claim against Cascade General. (Exs. 3A,
11). As of the hearing, claimant’s LHWCA claim
involving Cascade General was active, pending, and had not
been finally decided or settled. (Tr. 11). In addition, he
had not received any LHWCA benefits relating to a hearing
loss condition. (Tr. 9).
CONCLUSIONS
OF LAW AND OPINION
The ALJ
found that claimant’s earlier employer (Dawes) was
responsible for claimant’s hearing loss
condition.2 In doing so, the ALJ reasoned that,
although his subsequent employer (Cascade General) would have
been presumptively responsible under the last injurious
exposure rule (LIER), his work activities with Cascade
General were covered under the LHWCA and therefore could not
be considered for purposes of Oregon workers’
compensation. See Progress Quarries v. Vaandering,
80 Or.App. 160, 164-66 (1986); Richard W.
Branchcomb, 48 Van Natta 16, 17 (1996). Finally, the ALJ
awarded an $8,000 attorney fee under ORS 656.308(2)(d),
finding extraordinary circumstances.
On
review, the insurer contends that its insured (Dawes) is not
responsible for claimant’s hearing loss condition.
Based on the following reasoning, we agree.
Under
ORS 656.027, all workers are subject to the Oregon
Workers’ Compensation Act, except those specifically
excluded. Among those excluded is “a person for whom a
rule of liability for injury or death arising out of and in
the course of...
