280_C049

CLAIMANT’S LAST EMPLOYER WAS RESPONSIBLE FOR HIS INJURIES

Workers Compensation	Last Injurious Exposure Rule (LIER)
Last Employer Responsible	Bilateral Carpal Tunnel Syndrome

Zane D. Smith worked for 27 years as a pipefitter and welder for various employers. In February 2006, he was treated for symptoms that were later diagnosed as bilateral carpal tunnel syndrome. He filed a claim for workers compensation benefits with Loy Clark Pipeline (Loy Clark), the employer he worked for from August to September 2005. He subsequently worked on and off for short periods with several employers. He went to work with JH Kelly, LLC, and ACIG (collectively JH Kelly) on June 26, 2006 and worked there until almost the end of the year, at which time he had surgery for his carpal tunnel syndrome.

There was no doubt that Smith’s condition was compensable. Loy Clark was Smith’s most recent potentially causal employer at the time that Smith sought treatment for the condition and was presumably responsible under the Last Injurious Exposure Rule (LIER). However, Loy Clark tried to shift responsibility to JH Kelly as Smith’s subsequent employer by arguing that JH Kelly actually contributed to Smith’s worsened condition. The Administrative Law Judge (ALJ) held that JH Kelly was responsible as the last employment that actually contributed to Smith’s condition.

The Workers Compensation Board affirmed and adopted the ALJ’s decision. It described the law that involves applying the last injurious exposure rule under the following circumstances:

“Where, as here, there is a dispute concerning responsibility among several employers, it is well settled that the Last Injurious Exposure Rule (LIER) governs the assignment of responsibility. Under the LIER, initial or presumptive responsibility for the disease is assigned to the insurer during the last period of employment when conditions could have contributed to the claimant’s disability…. Liability is shifted from the presumptively responsible employer to a subsequent employer if claimant’s later employment actually contributed to a worsening of the condition.”

The Board stated that shifting responsibility to a subsequent employer required that the presumptively responsible employer prove that the later employment actually contributed to the worsened condition. Even a slight contribution to the worsened condition was sufficient to shift such responsibility.

JH Kelly appealed and argued that the Board did not actually apply the correct standard because it did not require proof of an actual, measurable, identifiable contribution on its part but instead relied on medical evidence that did not meet that standard because it supported only a theoretical contribution. Simply stated, JH Kelly said that there was no such proof.

The medical opinions offered in this case all agreed that all of Smith’s work contributed in some small degree to his condition. The medical evidence presented established that Smith’s work for JH Kelly contributed to the condition to at least a minor degree. The surgeon who first diagnosed Smith’s condition and operated on him testified by deposition as follows:

“[E]ach one of these employers, working in and of themselves for a month or two, probably did not cause any significant pathological worsening. However, summed all together, each one probably contributed a slight degree. [I]n reality, every employer that he worked for has probably contributed to some slight degree to the pathologic worsening.”

He further testified that with each work exposure, “to a minor degree the disease continues to march on,” even though the change was not measurable by nerve conduction studies.

The appellate court referred to previous case law that applied to a virtually identical situation with similar evidence. In doing so, it affirmed the Board’s finding that there was substantial evidence that supported the finding that Smith’s employment at JH Kelly contributed at least slightly to the worsening of his underlying carpal tunnel syndrome. It also affirmed that the Board did not err in assigning responsibility for Smith’s condition to JH Kelly.

Court of Appeals of Oregon. In the matter of the compensation of Zane D. Smith, Claimant, JH Kelly, LLC; and ACIG, Petitioners, v. Zane D. Smith; Rockford Corp.; Cambridge-Xchanging; Loy Clark Pipeline; and Liberty Northwest Insurance Corporation, Inc., Respondents. 0702027, 0607776, 0603159; A144385. Argued and Submitted March 2, 2011. Decided June 29, 2011. 244 Or.App. 123, 260 P.3d 583