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Wootton v. Stadeli Pump & Construction8/28/1991
COURT OF APPEALS OF OREGON
CA No. A65378
1991.OR.40675 ; 108 Or. App. 548; 816 P.2d 689
August 28, 1991
IN THE MATTER OF THE COMPENSATION OF GILBERT V. WOOTTON, CLAIMANT. GILBERT V. WOOTTON, PETITIONER,
v.
STADELI PUMP & CONSTRUCTION, AND EBI COMPANIES, RESPONDENTS
Judicial Review from Workers' Compensation Board. No. 88-06038.
Arthur P. Klosterman, Salem, argued the cause for petitioner. With him on the brief was The Law Offices of Brian R. Whitehead, Salem.
Lin A. Zimmerman, Portland, argued the cause for respondents. With him on the brief was Beers, Zimmerman, et al, Portland.
Richardson, Presiding Judge, and Joseph, Chief Judge, and Deits, Judge.
Deits
In this workers' compensation case, claimant seeks review of a Workers' Compensation Board order that held that his worsened back condition is the responsibility of a California employer. We affirm.
Claimant suffered a compensable back injury in Oregon on August 8, 1980, for which he was awarded 55 percent permanent partial disability by employer. On August 18, 1987, claimant suffered another injury to his back while working in California. The California employer accepted his claim for that injury and has paid claimant temporary disability benefits and benefits for medical services. He may be entitled to permanent total disability (PTD) under California law, but that has yet to be determined. He also filed an Oregon aggravation claim after the California injury. Employer denied the claim, asserting that, under Miville v. SAIF, 76 Or App 603, 710 P2d 159 (1985), acceptance of the 1987 California claim relieved the Oregon employer of any further responsibility for the 1980 Oregon injury. The Board upheld the denial.
Claimant argues that the Board erred, as a matter of law, in upholding denial of his aggravation claim. The parties agree that the 1987 California injury contributed independently to claimant's present disability and that his 1980 Oregon injury remains a material contributing cause of his current condition. Claimant acknowledges that, if this case involved two Oregon employers, responsibility would shift to the second employer. Colwell v. Trotman, 47 Or App 855, 858, 615 P2d 1094 (1980). Under California law, however, responsibility does not shift to the last employer, but is apportioned between employers, on the basis of the percentage of disability attributed to each. Claimant argues that, because of that, if the last injurious exposure rule is applied and the Oregon employer is absolved of responsibility for his disability, he will not be fully compensated, because he will only receive compensation for that portion of the injury for which the California employer is responsible. Claimant contends that that
result is inconsistent with our holding in Miville v. SAIF, supra.
In Miville, the claimant had suffered a compensable back injury in 1980, while working for an Oregon employer. Subsequently, he suffered off-the-job injuries and on-the-job injuries in Washington and Indiana. He then returned to Oregon, received chiropractic treatment and filed a claim for aggravation of his 1980 injury. The Oregon employer denied the claim, and the Board upheld the denial. On review, we found that the out-of-state injury had independently contributed to the claimant's condition and that the earlier Oregon injury had ma
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