NAES Corp. v. SCI 3.2, Inc. ( 2020 )

684
Argued and submitted September 28, 2018, affirmed April 29, petition for
review denied August 27, 2020 (366 Or 826)
In the Matter of the Compensation of
William H. Lodge, Claimant.
NAES CORPORATION,
Petitioner,
v.
SCI 3.2, INC.
and William H. Lodge,
Respondents.
Workers’ Compensation Board
1504600, 1502155; A165158
465 P3d 246
Employer, NAES Corporation, seeks judicial review of an order of the
Workers’ Compensation Board holding it responsible for claimant’s hearing loss
instead of claimant’s most recent employer, SCI 3.2, Inc., under the last injurious
exposure rule (LIER). NAES argues that, because the testifying experts allowed
for the possibility that claimant’s work at SCI contributed to his hearing loss, the
board erred in shifting responsibility for claimant’s occupational disease from
SCI to NAES under the LIER. NAES also argues that the board’s decision was
not supported by substantial evidence or reason. SCI responds that the board
properly applied the LIER in its order and that its decision was supported by
substantial evidence and reason. Held: The board did not err. The board correctly
applied the LIER and substantial evidence and reason supported its conclusion
that claimant’s employment prior to SCI was the sole cause of claimant’s hearing
loss.
Affirmed.
Rebecca A. Watkins argued the cause for petitioner. Also
on the briefs was Sather, Byerly & Holloway, LLP.
Trisha D. Hole argued the cause and filed the brief for
respondent SCI 3.2, Inc.
No appearance for respondent William H. Lodge.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.*
DeHOOG, P. J.
Affirmed.
______________
* Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 303 Or App 684 (2020) 685
DeHOOG, P. J.
Petitioner, employer NAES Corporation (NAES),
seeks judicial review of an order of the Workers’ Compensation
Board holding it responsible for claimant’s hearing loss
under the last injurious exposure rule (LIER). In its first
assignment of error, NAES contends that the board erred
in concluding that claimant’s most recent employer, respon-
dent SCI 3.2, Inc. (SCI), had successfully shifted responsi-
bility for claimant’s occupational disease to NAES by prov-
ing, to a reasonable medical probability, that claimant’s
prior employment was the sole cause of his hearing loss.1
NAES argues that the board applied the incorrect standard
of proof and that, because it was at least possible that claim-
ant’s work for SCI contributed to his hearing loss, the board
erred in concluding that his prior employment had been the
sole cause of that occupational disease. In its remaining two
assignments of error, NAES argues that the record lacks
substantial evidence and reason to support the board’s find-
ings that (1) it was impossible for claimant’s work for SCI
to have contributed to his hearing loss; and (2) claimant’s
prior employment was the sole cause of that condition. SCI
responds that the board applied the correct standard of
proof under the LIER and that substantial evidence in the
record supports that decision. Reviewing for legal error and
substantial evidence, we conclude that the board did not err;
accordingly, we affirm.
We summarize the facts as found by the board, not-
ing those disputed by NAES. ORS 656.298(7).2 Claimant,
William Lodge, worked as a boilermaker for various employ-
ers beginning in 1966, and, at the time he retired from that
profession in 2012, claimant had been working for NAES.
Following his retirement, claimant began working seasonally
1
Claimant, William Lodge, is a respondent to this appeal but did not file a
brief. The matter was therefore submitted on the merits as to claimant.
2
ORS 656.298(7) states that “[t]he review [of a Workers’ Compensation
Board order] by the Court of Appeals shall be on the entire record forwarded by
the board. Review shall be as provided in ORS 183.482(7) and (8).” In turn, ORS
183.482(7) states that “[r]eview of a contested case shall be confined to the record,
and the court shall not substitute its judgment for that of the agency as to any
issue of fact or agency discretion.” See also King v. SAIF, 300 Or App 267, 268, 452
P3d 1039 (2019) (unchallenged findings of historical facts “establish the facts for
purposes of judicial review”).
686 NAES Corp. v. SCI 3.2, Inc.
for SCI and worked in that capacity from 2013 through 2016.
While employed by SCI, claimant fabricated floats for the
Rose Festival Parade, at various times engaging in tasks
such as sawing, welding, grinding, and hammering.
In 2014, Dr. Lipman, an ear, nose, and throat spe-
cialist, diagnosed claimant with bilateral, noise-induced
hearing loss. Claimant subsequently filed an occupational
disease claim for that condition with both NAES and SCI.
Although neither employer disputed the compensability
of claimant’s condition, both employers issued denials of
responsibility. Claimant later submitted to an examination
by Dr. Hodgson at NAES’s request. A third doctor, Wilson,
reviewed claimant’s medical records at SCI’s request. As the
board explained in its order, Lipman concluded that, to a
reasonable medical probability, claimant’s work as a boiler-
maker had been the sole cause of his hearing loss and claim-
ant’s work for SCI had not contributed to that condition. The
board further explained that, “[b]ased on certain assump-
tions regarding the nature of claimant’s work and his use
of hearing protection that were supported by claimant’s
testimony, Dr. Hodgson opined that it was medically proba-
ble, but not certain, that the occupational component of the
hearing loss occurred before claimant began working for
[SCI].” Finally, after noting Wilson’s acknowledgement that
he had “insufficient information to be certain,” the board
explained that he had nonetheless concluded that “ ‘it was
medically probable that all of the occupational exposure
occurred [before claimant worked for SCI].’ ” NAES disputes
the board’s characterization of each doctor’s opinion in ways
that are not material to our disposition, but there is no dis-
pute that the board relied on those medical opinions as the
basis of its order.3
3
For example, NAES argues that Hodgson “made no such statement” iden-
tifying claimant’s prior employment as the sole cause of hearing loss. However,
as the above summary reflects, the board did not characterize Hodgson’s opin-
ion as NAES suggests. Rather, it characterized Hodgson’s opinion in a manner
consistent with his statement in the record that there were only three causes of
claimant’s hearing loss: “In my opinion, 55 percent of his current hearing loss is
due to lifelong occupational noise exposure as a Boilermaker, 35 percent is due
to [age-related sources], and 10 percent is due to recreational gun use.” In other
words, Hodgson’s opinion was that 100 percent of claimant’s hearing loss was due
to factors other than his work for SCI. The board’s account of that opinion does not
suggest otherwise.
Cite as 303 Or App 684 (2020) 687
The board first determined that, as the last
employer that could have caused claimant’s hearing loss,
SCI was presumptively responsible for that condition under
the LIER. However, citing Roseburg Forest Products v. Long,
325 Or 305, 313, 937 P2d 517 (1997), the board observed that
SCI could shift responsibility for claimant’s occupational
disease to a prior employer if it established that “(1) it was
impossible for conditions at its workplace to have caused the
disease; or (2) the disease was caused solely by conditions at
one or more previous employments.” Ultimately, the board
concluded that it was “medically probable” that claimant’s
work conditions at SCI had not contributed to claimant’s
hearing loss. But, by the same token, the board reasoned
that it could not conclude that those conditions could not
possibly have contributed to claimant’s hearing loss to some
degree. Accordingly, the board declined to shift respon-
sibility to NAES under the first Roseburg Forest Products
prong, namely, that such a causal connection was “impossi-
ble.” However, reasoning that the Roseburg Forest Products
rule permitted a presumptively responsible employer to
shift responsibility to another employer in either of two,
independent ways, the board concluded that SCI had effec-
tively shifted responsibility to NAES under the second, “sole
cause” prong, stating that “this record * * * establishes [to] a
medical probability that claimant’s work prior to his [SCI]
employment was the sole cause of his occupational disease.”
NAES now seeks judicial review of the board’s decision.
NAES challenges both the board’s legal conclusion
that it is responsible for claimant’s occupational disease
claim and the factual sufficiency of the record to support
that conclusion. We review the board’s legal conclusions for
errors of law and its factual findings for substantial evi-
dence in the record. SAIF v. Harrison, 299 Or App 104, 105,
448 P3d 662 (2019) (citing ORS 183.482(8)(a), (c)). In under-
taking that review, we note that the parties agree that the
Supreme Court’s decision in Roseburg Forest Products sets
forth the applicable analysis under the LIER. Further, nei-
ther party disputes that claimant’s hearing loss is work
related and therefore compensable, nor that SCI is the
employer presumptively responsible for that condition under
the LIER. See Roseburg Forest Products, 325 Or at 309
688 NAES Corp. v. SCI 3.2, Inc.
(describing the LIER, in part, as assigning responsibility
for a worker’s compensable condition to the “last employer
that could have caused the claimant’s injury”). Our focus,
therefore, is on whether SCI met its burden under the LIER,
permitting it to shift responsibility for claimant’s hearing
loss back to NAES as claimant’s previous employer. See
id. at 313 (application of the LIER establishes “a prima facie
case against the last employer,” which may be rebutted or
shifted by that employer).
On judicial review, NAES raises three assignments
of error, each challenging the board’s determination that
SCI successfully shifted responsibility for claimant’s occu-
pational disease to NAES. However, we discuss only the
merits of NAES’s first and third assignments, which assert
(1) that the board “applied an erroneous legal standard under
[the] LIER when it focused on probability[,] not possibility[,]
of contribution,” and (2) that the board’s determination that
claimant’s prior work conditions were the sole cause of his
hearing loss is not supported by substantial evidence and
reason.4 We address each assignment in turn.
As we understand NAES’s briefing of its first
assignment of error, its argument has two, interwoven
parts. First, NAES contends that the board relied on the
wrong standard of proof when it determined responsibil-
ity for claimant’s condition based on proof to a reasonable
medical probability, because doing so “dilute[s] the Roseburg
Forest Products standard [so as] to be one of probable contri-
butions, not the outlined impossibility/sole cause standard.”
In NAES’s view, a presumptively responsible employer can
4
NAES’s second assignment of error asserts that, “[t]o the extent the Board
found SCI 3.2 [had] met the ‘impossibility’ standard, its decision lacked substan-
tial evidence.” The board, however, explicitly determined that “it was not impossi-
ble for claimant’s work for [SCI] to have contributed to the occupational disease.”
(Emphasis added.) Further, to the extent that, as NAES suggests, that conclusion
is inconsistent with the ALJ order that the board purported to adopt, the board’s
supplementation of that order sufficiently clarifies its conclusion that it was not
impossible for SCI to have contributed to claimant’s hearing loss. Thus, contrary
to NAES’s argument, the board’s order is not inherently self-contradictory so as
to raise substantial-reason concerns. See Taylor v. SAIF, 295 Or App 199, 203,
433 P3d 419 (2018), rev den, 365 Or 194 (2019) (explaining that, as implicitly
required by the substantial evidence requirement of ORS 183.482(8)(c), “[o]rders
of the board must be supported by substantial reason”). Accordingly, we reject
NAES’s second assignment of error without further discussion.
Cite as 303 Or App 684 (2020) 689
never shift responsibility to an earlier employer if there is
any possibility that the claimant’s work for the later-in-time
employer made even a slight contribution to the claimant’s
occupational disease. NAES argues that, because proving
that it was probable that claimant’s work at SCI had not
contributed to his hearing loss does not foreclose the possi-
bility that it did, the board erred in relying on a reasonable-
medical-probability standard.
However, to the extent that NAES argues that SCI
was required to establish either Roseburg Forest Products
prong by more than a reasonable medical probability, we
recently reached the opposite conclusion in Liberty Metal
Fabricators v. Lynch Co., 295 Or App 809, 813, 435 P3d 810
(2019), adh’d to as modified on recons, 302 Or App 110, 456
P3d 691 (2020) (stating, in LIER case, that “evidence offered
in terms of reasonable medical probability would suffice to
establish that it was not possible for [the employment in
question] to have caused claimant’s hearing loss”); see also
id. at 812 (“The standard of proof in this [LIER] case is a
preponderance of the evidence.”). Thus, the board did not err
in basing its decision on evidence satisfying only a “reason-
able medical probability” standard of proof.
NAES’s second argument under its first assign-
ment of error is somewhat more nuanced. NAES seemingly
acknowledges that, as the board reasoned in its order, a
presumptively responsible employer can shift responsibility
to another employer in either of two ways. Indeed, NAES
expressly states that an employer can shift responsibility by
“show[ing] [that] it was impossible for its [work] conditions
to have caused a worker’s disease or that the disease was
caused solely by conditions at one or more previous employ-
ments.” (Emphasis added.) See Roseburg Forest Products,
325 Or at 313; see also Beneficiaries of Strametz v. Spectrum
Motorwerks, Inc., 325 Or 439, 444, 939 P2d 617 (1997) (LIER
cannot impose liability on an employer whose working con-
ditions were not the actual cause of a worker’s occupational
disease, even if those conditions were theoretically capable
of causing the disease). Consistent with that understand-
ing, NAES further suggests that its position is not that “sole
cause” and “impossibility” are identical standards.
690 NAES Corp. v. SCI 3.2, Inc.
NAES proceeds to argue, however, that the two
prongs of the Roseburg Forest Products shifting analysis are
“two sides of the same standard.” Citing a previous board
opinion, NAES contends that, in that case, the “sole cause”
prong “was not satisfied because the expert [there] allowed
for the possibility of contribution from the presumptively-
responsible employer.” (Emphasis added.) In NAES’s view,
the board’s decision in this case suffers from the same infir-
mity. NAES reasons that, although the board found that
claimant’s work conditions for NAES had been the sole
cause of claimant’s hearing loss, “sole cause” was not, in
fact, established, because there remained at least some pos-
sibility that claimant’s employment by SCI had contributed
to that condition. As NAES puts it, both the “impossibil-
ity” prong and the “sole cause” prong “have an exclusionary
character. Once another employment period contributes,
even to a minor and unmeasurable degree, a sole cause has
not been established.”
The difficulty with that argument is not that, on
its face, it is an entirely incorrect statement of the law.5
We agree that, as NAES notes, there is somewhat of a
“two sides of the same coin” quality to the Roseburg Forest
Products analysis. Thus, if the evidence compelled a finding
that claimant’s work for SCI had some causal relationship—
however slight—to his hearing loss, it would be neither
impossible for that relationship to exist nor true that his
work for NAES had been the sole cause of his condition. The
difficulty with NAES’s argument is in its application of that
principle here.
The first flaw in NAES’s reasoning is that it con-
flates actual contribution from SCI’s working conditions
with the mere possibility of such a contribution; only actual
contribution is necessarily inconsistent with a finding that
claimant’s previous employment was the sole cause of his
hearing loss. Because, at most, the evidence before the board
left open a possibility that the working conditions at SCI
5
NAES is incorrect, however, in its suggestion that even an “unmeasur-
able” contribution to claimant’s hearing loss would preclude a finding that it
was impossible for his employment with SCI to have had a causal connection to
that condition. See Liberty Metal Fabricators, 295 Or App at 813 (rejecting that
argument).
Cite as 303 Or App 684 (2020) 691
had contributed to claimant’s condition, that inconsistency
is not present here.
The second flaw in NAES’s approach is that, in its
challenge to the board’s application of a “medical probabil-
ity” standard, NAES blurs the distinction that the board
correctly recognized between the two prongs of the Roseburg
Forest Products analysis. NAES argues that the board
“inappropriately watered down the impossibility and sole
cause standards by focusing instead on medical probabil-
ity.” In essence, NAES’s argument is that, so long as there
is any possibility that employment with SCI caused claim-
ant’s hearing loss—a possibility ostensibly left open by the
board’s finding that SCI had not satisfied the “impossibility”
prong—then claimant’s work for NAES cannot be deemed
the “sole cause” of his condition. Simply put, in NAES’s view,
if one cause remains possible, then another cause cannot be
considered the “sole” cause.
Again finding guidance in our recent decision in
Liberty Metal Fabricators, we reject that view. In Liberty
Metal Fabricators, which we decided after this case was
submitted, the ultimate issue was, like here, which of two
employers was responsible for a claimant’s hearing loss. 295
Or App at 811. Unlike here, however, the board in Liberty
Metal Fabricators had expressly determined that the claim-
ant’s work for the presumptively responsible employer could
not possibly have caused his compensable hearing loss.
Id. at 812. As noted above, 303 Or App at 689, in that case
we ultimately rejected the petitioner’s contention that the
board had erred in applying a “medical probability” stan-
dard to that determination. Liberty Metal Fabricators, 295
Or App at 813; see also id. at 813 n 1 (noting that the pre-
ponderance standard applies unless otherwise provided by
statute in the workers’ compensation framework).
After reaching that conclusion, we proceeded to con-
sider whether, in light of an expert’s testimony that it was
theoretically possible that the claimant’s work for his most
recent employer had caused him a hearing loss too small
to measure, the board had erred when it determined that
the employer had satisfied the “impossibility” prong under
692 NAES Corp. v. SCI 3.2, Inc.
Roseburg Forest Products. Id. at 813. In concluding that the
board had not erred, we explained:
“Proof of literal impossibility is not what the case law
requires. Although literal impossibility would certainly
suffice to shift responsibility to a previous employer, a pre-
sumptively responsible employer may also shift responsi-
bility for an occupational disease to a prior employer by
showing that the disease was caused or worsened by condi-
tions solely at one or more previous employments. Roseburg
Forest Products, 325 Or at 308.”
Id. at 813-14 (emphases added). Through that explanation,
we implicitly stated what the board expressly stated in this
case, namely: (1) the two prongs under the Roseburg Forest
Products analysis provide independent bases for shifting
claim responsibility; and (2) even if the evidence does not
support a finding that it was impossible for a claimant’s work
for the presumptively responsible employer to have contrib-
uted to his or her occupational disease, that same evidence
may nonetheless support the finding that the claimant’s
previous employment was the sole cause of that condition.
Thus, as applicable here, SCI was not required to prove that
conditions at its workplace could not possibly have caused
claimant’s hearing loss in order for it to shift responsibil-
ity for the resulting claim to NAES. Accordingly, we reject
NAES’s first assignment of error.
We also reject NAES’s third assignment of error.
NAES asserts that, even under a reasonable-medical-
probability standard, neither substantial evidence nor sub-
stantial reason supports the board’s determination that
claimant’s prior employment was the sole cause of his hear-
ing loss. “Substantial evidence exists to support a finding
of fact when the record, viewed as a whole, would permit a
reasonable person to make that finding.” ORS 183.482(8)(c).
“As part of our review for substantial evidence, we also
review the board’s order for substantial reason—that is, we
determine whether the board provided a rational explana-
tion of how its factual findings lead to the legal conclusions
on which the order is based.” Harrison, 299 Or App at 105
(internal quotation marks omitted). Under that standard,
we must affirm the board’s reasonable interpretation of the
Cite as 303 Or App 684 (2020) 693
medical evidence if it is supported by substantial evidence.
See Liberty Metal Fabricators, 295 Or App at 814.
In arguing that the board’s order lacks substantial
evidence and reason, NAES first characterizes the board’s
reasoning as “difficult to determine” and rehashes its legal
argument that the sole-cause prong cannot be satisfied
by evidence meeting only a “reasonable medical probabil-
ity” standard. Then, turning to the board’s assessment of
the evidence, NAES argues that (1) the board’s reliance on
expert opinions “allow[ing] for [the] possibility of contribu-
tion from SCI” undercuts the board’s sole-cause determina-
tion, and (2) evidence of SCI’s lack of contribution “do[es] not
equate to a proof of sole cause” on the part of claimant’s pre-
vious employers. In a separate but related argument, NAES
points to evidence that causes other than work contributed
to claimant’s hearing loss and questions whether, in light of
that evidence, the Roseburg Forest Products analysis allows
for a “sole cause” finding. Finally, citing Foster Wheeler Corp.
v. Marble, 188 Or App 579, 584, 72 P3d 645, rev den, 336 Or
60 (2003), NAES argues that the board’s discussion of the
competing evidence was inadequate, because the board did
not explain how expert testimony that allowed for the possi-
bility that claimant’s employment at SCI had contributed to
his hearing loss was consistent with its determination that
his previous employment had been the sole cause of that
condition.
We conclude that substantial evidence and reason
support the board’s determination that claimant’s prior
employment as a boilermaker, including his time with
NAES, was the sole cause of his hearing loss. As noted,
303 Or App at 686, the board’s order described much of the
evidence that the parties had presented and explained its
assessment of it. For example, the board summarized each
of the three medical opinions in the record. As the board
explained: (1) Lipman had concluded that “claimant’s work
as a boilermaker was the sole cause of claimant’s hearing
loss”; (2) Hodgson had concluded that “claimant’s occupa-
tional noise exposure as a boilermaker was the major con-
tributing cause, and the sole occupational cause,” of his con-
dition; and (3) Wilson, in his own terms, had concluded that
694 NAES Corp. v. SCI 3.2, Inc.
“ ‘it was medically probable that all of the occupational expo-
sure occurred prior to [claimant’s] employment’ ” with SCI.
(Brackets in the board’s order.)
With respect to its determination that claimant’s
work for SCI had not contributed to his hearing loss, the
board again pointed to that expert testimony. For exam-
ple, the board noted Lipman’s opinion (based, in part, on
claimant’s testimony at the hearing) “that claimant’s work
for [SCI] did not contribute to the hearing loss.”6 The board
also cited Hodgson, who, having been given the same details
about claimant’s work and his use of hearing protection, had
opined that “it is medically probable, not certain, but med-
ically probable, more probable than not, that the occupa-
tional component of his hearing loss occurred prior to 2013.”
Finally, the board cited Wilson’s opinion to substantially the
same effect.
In relying on those opinions for that purpose, the
board acknowledged that both Hodgson and Wilson had
refrained from expressing certainty that claimant’s work for
SCI had played no role in his hearing loss; accordingly, the
board reasoned that SCI had not satisfied Roseburg Forest
Products “impossibility” prong.7 However, like the experts
themselves, the board reasoned that, if claimant’s work-
place exposure to occasionally noisy conditions at SCI had
not contributed to his hearing loss, it was more probable
that his previous work conditions had been its sole cause.
In light of that evidence and the board’s explana-
tion of its significance in its order, we reject each of NAES’s
arguments in support of its third assignment of error. First,
6
Among other things, claimant testified at the hearing before the ALJ that,
when he worked for SCI, he would use grinding and sawing equipment as often as
twice a week, but he always wore hearing protection when exposed to such loud
conditions.
7
To the extent that that decision by the board reflected an understanding
that SCI had to prove the impossibility prong to a medical “certainty,” as opposed
to a reasonable medical probability, our decision in Liberty Metal Fabricators
suggests otherwise. 295 Or App at 813 (explaining that the presumptively
responsible employer need not prove “literal impossibility” or medical certainty
to satisfy the “impossibility” prong). Here, however, neither party challenges
that ruling and it is not material to our disposition; accordingly, we do not dis-
cuss it further.
Cite as 303 Or App 684 (2020) 695
as explained above, the impossibility and sole-cause prongs
under Roseburg Forest Products are independent. 303 Or
App at 692. As a result, there is no inconsistency in deter-
mining that claimant’s work for NAES had been the sole
cause of claimant’s condition despite the board’s concurrent
determination that SCI had not eliminated all possibility
that its working conditions had contributed to his hearing
loss.
Second, to the extent that NAES argues otherwise,
it was appropriate for the board to consider expert testi-
mony that claimant’s work for SCI was unlikely to have con-
tributed to his hearing loss in determining that his prior
employment as a boilermaker had been its sole cause. As
we understand NAES’s lack-of-contribution-does-not-equal-
sole-cause argument, it is that evidence related to claim-
ant’s work for SCI is relevant only to the impossibility prong,
which the board determined had not been established.
NAES does not persuasively explain, however, why the mere
fact that evidence is relevant to prove one prong renders it
irrelevant to prove the other prong.
In our view, evidence relevant to show that claim-
ant’s work for SCI, an otherwise potential cause of his hear-
ing loss, was unlikely to have actually played that causal
role is equally relevant to prove that something else, includ-
ing claimant’s work for NAES, did play that role. Even if,
standing alone, that evidence might be insufficient to sup-
port the finding that claimant’s previous employment had
been the sole cause of his condition, there is no reason
that it could not provide evidentiary support for that find-
ing. Cf. OEC 401 (defining relevant evidence as “evidence
having any tendency to make the existence of any fact * * *
more probable or less probable than it would be without the
evidence”).
Here, because the board had ample affirmative
evidence that claimant’s work as a boilermaker was the
likely cause of his hearing loss—evidence that NAES does
not dispute—its reliance on evidence that claimant’s work
at SCI was unlikely to have contributed to that loss in no
way deprives the board’s ultimate conclusion of substantial
696 NAES Corp. v. SCI 3.2, Inc.
evidence or reason.8 See Wiggins v. SAIF, 300 Or App 319,
324, 453 P3d 603 (2019) (the board’s determination “is sup-
ported by substantial evidence if the record, viewed as a
whole, would permit a reasonable person to make the find-
ing” (internal quotation marks and brackets omitted)).
NAES’s third substantial-evidence argument is
similarly unpersuasive. NAES contends that, because the
board did not expressly consider potential other, nonwork
causes of claimant’s hearing loss, its sole-cause determina-
tion is not supported by substantial evidence. We disagree.
The issue before the board was not whether any aspect of
the claim was compensable, but which of two employers was
responsible for that concededly compensable claim. Thus,
to the extent that NAES now suggests that part of claim-
ant’s hearing loss is noncompensable, that argument has no
bearing on whether the sole cause of claimant’s compensable
condition was work he performed before his employment by
SCI.
Finally, we reject NAES’s suggestion that, under
Foster Wheeler Corp., 188 Or App at 584, the board’s order
lacks substantial reason because it was based on conflict-
ing evidence and the board did not adequately explain its
resolution of that conflict. According to NAES, the board
was required to explain why, in determining that claimant’s
prior employment had been the sole cause of his occupational
disease, it had disregarded expert testimony that allowed
for the possibility that claimant’s employment at SCI had
contributed to his hearing loss. Again, we disagree.
The premise of NAES’s argument appears to be
that the medical experts in this case testified in a manner
that was either internally inconsistent or inconsistent with
the testimony of each other, requiring the board to explain
how it chose what testimony to accept. See, e.g., SAIF v.
January, 166 Or App 620, 626, 998 P2d 1286 (2000) (board
8
Among other evidence in the record, Lipman opined that “it is medically
probable that his 40 years of employment as a boilermaker represents the sole
cause of his hearing loss,” Hodgson acknowledged that “the type of work that he
performed [for NAES] would expose him to potentially injurious noise” and that
the “concept of employment-related hearing loss began as ‘boilermaker’s ear’ in
the 1920s,” and Wilson agreed that claimant’s work as a boilermaker “certainly
contributed to the patient’s hearing loss and likely to a very significant degree.”
Cite as 303 Or App 684 (2020) 697
erred when it neither acknowledged nor reconciled inconsis-
tencies between two opinions offered by the same medical
expert, then failed to explain why it found one opinion more
persuasive than the other). Here, however, there were no
inconsistencies for the board to explain.
For one thing, no expert opined that it was not med-
ically probable that claimant’s prior employment had been
the sole cause of his hearing loss. Thus, the board’s sole-
cause determination did not implicitly reject any conflict-
ing evidence or, for that reason, require further explana-
tion. Cf. Harrison, 299 Or App at 114-15 (although expert’s
opinion appeared to rely on conflicting accounts of how the
claimant’s workplace injury occurred, opinion itself was not
inconsistent and board was not required to provide lengthy,
in-depth explanation of its reliance on opinion).
For another thing, even viewing Hodgson’s and
Wilson’s testimony—in which they acknowledged that they
could not say for certain that claimant’s work for SCI had
played no role in his condition—as affirmative evidence
that a causal relationship was possible, that still would not
create a conflict under the LIER. That is, as we have just
explained, the two prongs under Roseburg Forest Products
are independent bases on which a presumptively responsi-
ble employer can shift liability to an earlier employer. 303
Or App at 692. Thus, there is no material inconsistency
between, on the one hand, testimony that it was possible
that claimant’s work for SCI had contributed to his hearing
loss and, on the other hand, the board’s ultimate determi-
nation that, to a reasonable medical probability, claimant’s
prior employment had been its sole cause. See id.; Liberty
Metal Fabricators, 295 Or App at 814.
Contrary to NAES’s suggestion, Foster Wheeler
Corp. has no bearing on this case. There, we held that evi-
dence that the claimant’s work for the presumptively respon-
sible employer could have caused his occupational disease
provided support for the board’s finding that the claimant’s
previous employment had not been its sole cause.9 Foster
9We note that there appears to be an error in the Foster Wheeler Corp. opin-
ion. In explaining our decision, we stated that there was evidence that “claim-
ant’s work as an ironworker and boilermaker for employer could have contributed
698 NAES Corp. v. SCI 3.2, Inc.
Wheeler Corp., 188 Or App at 584. As a result, the board had
not erred when it determined that the employer had failed
to satisfy either of the Roseburg Forest Products prongs. Id.We did not, however, suggest that the evidence compelled
the board’s finding that the claimant’s previous employment
had not been the sole cause of his condition, or that that evi-
dence was necessarily inconsistent with a finding that the
claimant’s prior work had been its sole cause. Furthermore,
and of particular relevance here, we did not suggest in that
case that the contrary finding would have required addi-
tional explanation.
Consequently, neither Foster Wheeler Corp., nor any
other authority identified by NAES, required the board to
further explain its reliance on the experts’ sole-cause testi-
mony or how that evidence led to the board’s ultimate legal
conclusion. Therefore, the board’s order did not lack sub-
stantial reason.
The board properly applied the LIER in deter-
mining that SCI had successfully shifted responsibility
for claimant’s compensable hearing loss to NAES because
claimant’s previous employment was the “sole cause” of that
occupational disease. That decision was supported by sub-
stantial evidence and reason. Accordingly, we affirm.
Affirmed.
to that loss.” 188 Or App at 584 (emphases added). From the context, however,
it appears that we meant to say that the claimant’s work for the employer using
“jackhammers and metal bars” could have contributed to that loss, as the claim-
ant’s work as an ironworker and boilermaker had only been for previous employ-
ers. See id. at 581. We proceed with that understanding.