The Oregon Court of Appeals doubles down on the two-prong Roseburg Forest test making it easier for a presumptively responsible employer to shift responsibility
In April 2020, the Court of Appeals issued a significant decision regarding responsibility cases. In NAES Corporation v. SCI 3.2, Inc., 303 Or. App. 684 (2020), the issue was whether the Board erroneously focused on “probability” and not “possibility” of contribution in determining that claimant’s prior work exposure was the sole cause of his hearing loss such that the presumptively responsible employer could successfully shift its responsibility backwards.
Claimant worked as a boilermaker for various employers from 1966 through 2012 when he retired. At that time, he was working for NAES. Following his retirement, claimant worked seasonally for SCI fabricating parade floats from 2013 through 2016. This seasonal work involved sawing, welding, grinding, and hammering.
In 2014, claimant was diagnosed with bilateral, noise induced hearing loss. Claimant subsequently filed claims with both NAES and SCI. Both employers issued responsibility denials. At hearing, claimant’s expert opined his work as a boilermaker was the sole cause of claimant’s hearing loss and that his work with SCI had not contributed to the condition. On review, the Board determined it was medially probable that all of claimant’s occupational exposure related to his hearing loss occurred before claimant’s employment with SCI. As such, although SCI was the presumptively responsible employer under the last injurious exposure rule (LIER), the Board held SCI successfully shifted responsibility to NAES pursuant to Roseburg Forest Products v. Long, 325 Or 305, 313, (1997), because the evidence showed it was medically probable claimant’s work prior to his employment with SCI was the sole cause of his bilateral, noised induced hearing loss. In other words, the Board held SCI could shift responsibly to NAES under the “sole cause” prong of the Roseburg Forest test. NAES appealed the decision to the Court of Appeals challenging, among other issues, the Board’s legal conclusion that it was responsible for claimant’s occupational disease.
NAES argue that based on Roseburg Forest, the presumptively responsible employer can never shift responsibility to an earlier employer if there is any possibility claimant’s work for the later-in-time employer contributed to the occupational disease even if that contribution was negligible. Said another way, just because the presumptively responsible employer can show it was probable that claimant’s work did not contribute to the occupational disease, that does not mean it was impossible and the impossibility prong of the Roseburg Forest test is not satisfied. The Court disagreed. Under Roseburg Forest, the presumptively responsible employer can shift responsibility if they can prove either (1) it was impossible for conditions at its workplace to have caused the occupational disease or (2) the disease was caused solely by the conditions at one or more previous employment. The Court explained that there are two distinct prongs under the Roseburg test and NAES’s argument incorrectly blurs the two distinct prongs. In rejecting NAES’s argument, the Court held that a presumptively responsible employer is not required eliminate all possibility that it’s work place could have contributed to the occupational disease in order to shift responsibility, rather, it is sufficient to prove an earlier employer was the sole cause of the occupational disease because the distinct “sole cause” prong is been satisfied.
The Roseburg Forest prongs have always seemed a bit incompatible, or as the Court put it, the prongs have a “two sides of the same coin” quality. Theoretically, if there is evidence of some causal relationship between the occupational disease and the workers’ employment with the presumptively responsible employer then “it would be neither impossible for that relationship to exist nor true that his work for [a previous employer] had been the sole cause of his condition.” The Court, however, explained that this principle is problematic in application because there is difference between actual proof of contribution and the mere possibility of such contribution, and that the mere possibility is not enough to stop the presumptively responsible employer from shifting responsibility. Going forward, this case will make it easier for the presumptively responsible employer to shift responsibility backwards if (1) they produce evidence the previous employer was the sole cause and (2) there is no evidence of actual contribution from its employment even if it is theoretically possible. If you find yourself in the position of the second-in-line employer and the presumptively responsible employer is alleging your employment was the sole cause, do not get caught up in the theoretical or hypothetical possibilities, leave that to the philosophers!
If you have any further questions about LIER and responsibility shifting, feel free to contact me at 503-595-6115 or