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Jocelyn v. Wampler Werth Farms12/28/1994
age in ignoring the very words chosen by the legislature.
The majority surmises that, in the light of the fact that the legislature made some changes to ORS 656.273(1) in 1990, had it sought to change the claimant's burden of proof in an aggravation claim, it would have made additional changes to the statute similar to those made to ORS 656.005(7). I think it more likely that the legislature made no additional changes to ORS 656.273, because it believed that the changes made to ORS 656.005(7) encompassed aggravation claims.
Contrary to the majority's view, the application of ORS 656.005(7)(a)(B) to aggravation claims would not lead to an absurdity. If there is no preexisting condition, then the standard of proof in an aggravation claim, as in an initial claim, would be the material contributing cause standard. If there is a preexisting condition that contributes to the worsening, then the claimant must show, as in an initial claim, that the work is the major contributing cause of the worsened condition. In either case, if a subsequent off-the-job injury contributes to the worsened condition, then the employer would be able to show that the subsequent injury is its major contributing cause. Fernandez v. M & M Reforestation, 124 Or.App. 38, 860 P.2d 898 (1993). There is no illogic to the way the statutes work together. They simply deal with different potential aspects of a claim and may or may not be relevant to a particular case.
As I interpret the statutes, if a claimant has previously established, in the context of an original claim, that because of the effects of the employment, a preexisting condition is itself compensable, then there would be no need for the claimant to reprove the relationship between the employment and the preexisting condition in a later aggravation claim. The preexisting condition, once shown to be compensable, remains compensable. Here, claimant's preexisting condition was noted in the medical reports at the time of the original claim, and he has perhaps received medical treatment and compensation for the effects that the compensable injury had on the preexisting condition; however, the preexisting condition itself is not compensable, nor is it claimed to be. It is that preexisting condition that has worsened and for which claimant now seeks compensation. If claimant's 1987 injury bears any relationship to his current disc condition, it is only to the extent that it combines with the preexisting condition. I would hold that ORS 656.005(7)(a)(B) is applicable and that claimant must show that the initial compensable injury is the major contributing cause of the worsened condition. I would hold that substantial evidence supports the Board's determination that he has not met that burden.
RICHARDSON, C.J., and ROSSMAN and LEESON, JJ., join in this Dissent.
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