disagreeing with the dissent- ing opinion’s view on that point
How later courts described this case
- disagreeing with the dissent- ing opinion’s view on that point
Written by the judges who cited it.
The opinion
543
Argued and submitted April 5, 2019, reversed and remanded March 4, 2020
In the Matter of the Compensation of
Lloyd R. Fleming, Claimant.
Lloyd R. FLEMING,
Petitioner,
v.
SAIF CORPORATION
and Treske Precision Machining,
Respondents.
Workers’ Compensation Board
1504074; A165693
461 P3d 261
Claimant seeks judicial review of an order of the Workers’ Compensation
Board affirming respondent SAIF’s denial of claimant’s occupational dis-
ease claim for a right shoulder condition. The board concluded that claimant’s
prior disputed claim settlement (DCS) under ORS 656.289(4) with his previous
employer, in which he stipulated that his shoulder condition was not compensably
related to his work for that employer, precluded him from contending, against
the employer in this case, that that employment contributed to his claimed occu-
pational disease. Claimant argues that his DCS with a previous employer does
not preclude him from asserting, in the context of a claim against his subse-
quent employer, that that employment contributed to his claimed occupational
disease. Held: ORS 656.289(4) does not state or imply that a DCS with a previous
employer, as a matter of law, precludes a claimant from litigating the role that
previous employment may have played in determining the compensability of a
subsequent claim against an employer not bound by a DCS with that claimant.
The board erred in concluding otherwise.
Reversed and remanded.
Julene M. Quinn argued the cause and filed the briefs for
petitioner.
Julie Masters argued the cause and filed the brief for
respondents.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded.
DeVore, J., dissenting.
544 Fleming v. SAIF
LAGESEN, P. J.
Claimant seeks judicial review of an order of the
Workers’ Compensation Board. In that order, the board
affirmed respondent SAIF’s denial of his occupational dis-
ease claim for a right shoulder condition. The board con-
cluded, applying Gilkey v. SAIF, 113 Or App 314, 832 P2d
1252, rev den, 314 Or 573 (1992), that claimant’s prior dis-
puted claim settlement (DCS) under ORS 656.289(4) with
his previous employer, in which he stipulated that his shoul-
der condition was not compensably related to his work for
that employer, precluded him from contending, in this pro-
ceeding involving an occupational disease claim against a
different employer, that that employment contributed to his
claimed occupational disease. On review, claimant argues
that the board’s interpretation of Gilkey is incorrect and
that the board erred when it concluded that claimant’s DCS
with respect to the claim against his prior employer pre-
cluded him from asserting, in this proceeding, that his pre-
vious work contributed to his claimed occupational disease
in his right shoulder. We agree with claimant and, there-
fore, reverse and remand to the board.
The dispositive facts in this case are not in dispute.
Claimant worked as a saw fitter for Simonds International
from 2010 to 2013. His primary responsibilities included
grinding large band saws and rolling out welds, all of which
put considerable pressure on his arms. In 2012, claimant
began experiencing significant pain whenever he would
raise or lower his right arm. He visited his doctor, who diag-
nosed him with a full thickness partial tear of his right
rotator cuff. Claimant filed for workers’ compensation and
Simonds’s insurer, Liberty Northwest Insurance Company,
accepted the claim. Claimant underwent several weeks
of treatment during which the condition improved signifi-
cantly. In February 2013, claimant was released back to
regular full duty with no permanent limitations.
In November 2013, claimant left his job with
Simonds to work for Treske Precision Machining. He worked
at this job without difficulty until July 2014, when the pain
in his shoulder returned. Claimant returned to see his doc-
tor again, who discovered that his condition had worsened to
Cite as 302 Or App 543 (2020) 545
a full thickness rotator cuff tear. Claimant requested that
Liberty, as Simonds’s insurer, accept the full thickness tear
as a worsening of the rotator cuff tear accepted by Liberty
in 2012. In evaluating claimant’s request, Liberty scheduled
an insurer-arranged medical examination (IME) of claim-
ant. After examining claimant, the IME doctor concluded
that claimant’s current rotator cuff tear was the result of a
condition that was preexisting at the time of his 2012 rota-
tor cuff injury. For that reason, Liberty denied claimant’s
claim for a worsening of the 2012 condition.
Claimant nonetheless underwent surgery to repair
his rotator cuff and sought review of Liberty’s denial.
However, before a hearing was held in claimant’s case,
claimant and Simonds, acting through Liberty, agreed to
settle the case by DCS under the authority of ORS 656.289.
The DCS recited the competing contentions of claimant
and Liberty regarding claimant’s rotator cuff tear that
“[e]ach party has substantial evidence to support its factual
allegations,” that there was a “bona fide dispute between
the claimant and [Liberty],” and that “[t]he parties have
agreed to compromise and settle the denied claim under
the provisions of ORS 656.289(4).” Under the terms of the
DCS, claimant received $25,000 in exchange for allowing
Liberty’s denial of his worsening claim to remain in force.
The DCS also provided that claimant agrees that the “legal
effect” of the settlement would be “the same as if the claim-
ant admitted and agreed to the accuracy of the contentions
of [Liberty]” recited in the agreement.
Shortly after entering into the DCS, claimant ini-
tiated the occupational disease claim at issue in this case
against his current employer, Treske, insured by SAIF.
Claimant asserted that, although working conditions at
Treske were not the major contributing cause of his injury,
Treske was still liable for his current rotator cuff condition
by virtue of the “last injurious exposure rule” (LIER), appli-
cable to occupational disease claims under Inkley v. Forest
Fiber Products Co., 288 Or 337, 605 P2d 1175 (1980). As had
Liberty, SAIF scheduled an IME of claimant. Just as before,
the examining doctor concluded that claimant’s work condi-
tions were not the major cause of his full thickness rotator
cuff tear. As a result, SAIF too denied claimant’s claim.
546 Fleming v. SAIF
Claimant requested a hearing before an adminis-
trative law judge (ALJ), who upheld SAIF’s denial of the
claim. The ALJ held that, under Gilkey, 113 Or App 314,
claimant’s DCS with Liberty as a matter of law operated
to preclude him from contending that his employment with
Simonds was a cause of his current rotator cuff condition.
That, according to the ALJ, meant that claimant’s right
shoulder condition had to be treated as a preexisting con-
dition for purposes of his claim and that claimant had to
“prove that his work at Treske was the major contributing
cause of the combined condition and pathological worsening
of his right shoulder condition.” Because the medical evi-
dence submitted by claimant did not address that point at
all, the ALJ concluded that claimant had not met his burden
of proof and affirmed SAIF’s denial.
Claimant sought review by the Worker’s Compensa-
tion Board, which adopted and affirmed the ALJ’s order. On
review before the board, claimant argued that the DCS that
he entered into to resolve his prior claim against Simonds
did not preclude him from asserting, in the context of the
instant claim, that his employment at Simonds contributed
to his claimed occupational disease. Gilkey, he argued, is
distinguishable because, in that case, the claimant’s prior
DCS and subsequent claim involved the same employer.
Here, claimant’s prior DCS involved a different employer
from the one he now asserts a subsequent claim against.
Instead, claimant asserted that Ahlberg v. SAIF, 199 Or
App 271, 111 P3d 778 (2005), controls. Ahlberg provides that,
under the LIER, a worker’s compensation claimant can rely
on “any and all working conditions” to establish compensa-
bility of his current injury. Id. at 276 (emphasis in original).
SAIF, Treske’s insurer on the claim, argued in response that
the ALJ correctly decided that Gilkey controls.
The board ultimately adopted the ALJ’s opinion
and order, employing largely the same reasoning. The board
rejected claimant’s attempt to distinguish Gilkey, explain-
ing that, in its view, Gilkey did not turn on the fact that
the prior DCS and subsequent claim both involved the same
employer. Instead, the board understood Gilkey to turn on
the express wording of the DCS at issue. The board explained
Cite as 302 Or App 543 (2020) 547
that here, just as in Gilkey, claimant “expressly stipulated
and agreed that his then-current right shoulder conditions
(which included the current claimed conditions) were not
related or attributable to his employment exposure (includ-
ing his work injury and work activities) with Simonds and
were due, instead, to nonwork-related causes or subsequent
injuries or work activities.” (Emphasis in original.) Those
stipulations, even though they were included in a settlement
agreement to which Treske was not a party, were stipu-
lations that bound claimant on his claim against Treske.
Claimant sought judicial review of the board’s decision.
The legal effect of a DCS under ORS 656.289(4) on
a subsequent claim against a different employer presents a
question of law, so we review for legal error. ORS 183.482(8).
As an initial matter, the board erred when it con-
cluded that Gilkey stands for the proposition that a DCS
under ORS 656.289(4) binds a claimant in the context of a
different claim against a different employer. That is because
that issue was not presented in Gilkey. At issue in Gilkey
was the legal effect of a DCS in the context of the claimant’s
subsequent claim against the same employer and the same
insurer. We were not asked to address, and did not address,
the extent to which a nonparty to a DCS might rely on it
to resolve factual issues in the context of a subsequent pro-
ceeding. To answer that question, we must interpret ORS
656.289(4) by examining its text in context. See State v.
Couch, 341 Or 610, 617, 147 P3d 322 (2006).
ORS 656.289(4) provides:
“(a) Notwithstanding ORS 656.236, in any case where
there is a bona fide dispute over compensability of a claim,
the parties may, with the approval of an Administrative
Law Judge, the board or the court, by agreement make
such disposition of the claim as is considered reasonable.
“(b) Insurers or self-insured employers who are parties
to an approved disputed claim settlement under this sub-
section shall not be joined as parties in subsequent pro-
ceedings under this chapter to determine responsibility for
payment for claim conditions for which settlement has been
made.
548 Fleming v. SAIF
“(c) Notwithstanding ORS 656.005(21), as used in
this subsection, ‘party’ does not include a noncomplying
employer, except where a noncomplying employer has sub-
mitted a disputed claim settlement with a claimant for
approval before the claim has been referred to an assigned
claims agent by the director. Upon approval of the disputed
claim settlement, the Administrative Law Judge, the board
or the court shall mail to the director a copy of the disputed
claim settlement.”
The text of paragraph (b) speaks directly to the legal
effect of a DCS in a subsequent proceeding addressing a con-
dition addressed by the settlement. That effect, the statute
explains, is that insurers or self-insured employers “who are
parties” to a DCS “shall not be joined as parties in subse-
quent proceedings under this chapter to determine respon-
sibility for payment for claim conditions for which settlement
has been made.” That text clarifies that the legal effect of a
DCS is to resolve an insurer’s or employer’s responsibility
to the claimant for payment with respect to a claim condi-
tion that has been settled; once an insurer or self-insured
employer has entered into a DCS, it can no longer be made
to participate in any subsequent proceeding about the con-
dition or conditions resolved by the DCS, and can no longer
be made to pay for the condition or conditions. The text of
the statute, notably, does not state or imply that the effect of
a DCS goes beyond that to resolve as a factual matter for the
purposes of a subsequent proceeding what role employment
with the relevant insured or self-insured employers might
have played in the claimed condition. Indeed, the statutory
text’s explicit contemplation of the possibility of subsequent
proceedings in which the settling self-insured employer or
insurer’s responsibility would otherwise be at issue tends to
suggest that the legislature anticipated that a DCS would
not conclusively resolve factual issues for the purposes of
such proceedings. Had the legislature intended for the legal
effect of a DCS in subsequent proceedings to go beyond what
it expressly stated in ORS 656.289(4)(b), we think that it
would have said so expressly.1
1
We have reviewed the legislative history of ORS 656.289. The legislature
did not address explicitly the issue presented by this case, but we see no indi-
cation that the legislature intended that a DCS would be legally binding on a
claimant in subsequent proceedings involving nonparties to the DCS.
Cite as 302 Or App 543 (2020) 549
The dissenting opinion reaches a contrary conclu-
sion, but its analysis rests on several manifest fault lines.
First, the opinion strays from the basis of the board’s order,
the arguments presented to us, and, perhaps most saliently,
our case law. In Gilkey, we held squarely that a DCS does
not give rise to claim preclusion or issue preclusion. Gilkey,
113 Or App at 317. Contrary to the dissenting opinion’s sug-
gestion, that holding in Gilkey was not dictum. The board
in Gilkey had relied on principles of preclusion, and we
were explaining that the board erred in doing so, though
we ultimately concluded that we could affirm on an alterna-
tive basis identified by the board. Id. And, in this case, the
board did not purport to apply preclusion principles, neither
party disputes the nature of Gilkey’s holding, and neither
party asks us to overrule that preclusion holding. Second,
the opinion relies on a conclusory and questionable reading
of ORS 656.289(4) to the extent that it suggests that the
board’s fairness review of a DCS effectively converts the DCS
into an order of the board; it is far from a foregone conclu-
sion that fairness review converts a private settlement into
a board order. Third, the dissenting opinion draws authority
from treatise passages that do not, on their face, bear much
resemblance to Oregon’s statutory workers’ compensation
scheme and, therefore, do not provide insight into the pol-
icy choices made by the Oregon legislature in enacting that
scheme. For these reasons, the opinion ultimately does not
answer the core question presented by this case: Did the leg-
islature intend for a DCS entered into under ORS 656.289
to be binding in a subsequent proceeding between a party to
the agreement and a nonparty?
For those reasons, the board erred when it con-
cluded that claimant’s DCS, as a matter of law, precluded
him from litigating the role his employment with Simonds
may have played in the shoulder condition on which his
occupational disease claim against Treske is founded.2 We
therefore reverse and remand.
Reversed and remanded.
2
The parties have not addressed the extent to which stipulations in a DCS
may be entered into evidence in a subsequent proceeding against a nonparty to
the DCS, and we express no opinion on the issue.
550 Fleming v. SAIF
DeVORE, J., dissenting.
This workers’ compensation case presents an open
question whether the stipulated facts in a disputed claim
settlement (DCS), approved by the Workers’ Compensation
Board in a prior claim, should be recognized as prior deter-
minations of the board when claimant disclaims those stip-
ulated facts in a new claim against his next employer. The
question can be posed, contemplating two very different pos-
sibilities. When claimant makes a claim against the subse-
quent employer based on the same medical history, should
the board regard the prior DCS stipulations to be irrelevant
to the subsequent claim, akin to terms of a private settle-
ment with a third party? Or, are those stipulations to be
regarded as public determinations of ultimate fact that were
approved by the board so as to be binding on claimant in
both the prior, settled claim and the current, subsequent
claim?
The majority decides that the board erred by regard-
ing claimant’s stipulations in the prior DCS as binding on
claimant in this subsequent claim. Looking at the same
statutes and case law, I am not persuaded that the board
erred. Looking at the context of the workers’ compensation
system, I suspect that the answer should be that, because
the stipulations are the bases for the board’s approval of a
DCS with the prior employer done within the context of the
workers’ compensation system, they are determinations of
the board as to those stipulated facts for purposes of claim-
ant’s claims against the both settled and subsequent employ-
ers. Regardless which answer prevails today, the question
presented deserves more attention even if only from the
exploration of the question in this opinion. The question may
deserve attention from the practicing bar or a supervising
legislature.
FACTS
From 2010 through part of 2013, claimant worked
for his prior employer, Simonds International Corporation
(Simonds). In July 2012, he had a nondisabling shoulder
strain, which was accepted by Liberty, Simonds’s insurer. In
February 2013, claimant was released with no permanent
limitations.
Cite as 302 Or App 543 (2020) 551
In November, 2013, claimant began working with
Treske Precision Machining, Inc. (Treske). In July 2014, he
experienced right shoulder symptoms.
In January 2015, he filed a claim against former
employer Simonds and Liberty for a new medical condition
or an aggravation of his July 2012 injury. In March 2015,
Liberty issued a partial denial. Claimant sought review
and, in the meantime, underwent surgery for his rotator
cuff condition.
In June 2015, claimant, Simonds, and Liberty
entered into a disputed claim settlement. As required by
rule, the DCS recounted the conflicting contentions of the
parties. See OAR 438-009-0010 (quoted later). Among the
contentions, claimant had asserted that the current condi-
tions were compensable conditions arising out of the July
2012 work activities. In reply, Liberty had asserted that the
previously accepted right shoulder strain had been resolved
without the need for further medical treatment and was
no longer the material contributing cause of disability or a
need for treatment. After detailing the current conditions,
Liberty made further allegations that would become the
basis of the parties’ stipulations to resolve the claim. Liberty
alleged that
“claimant’s current conditions * * * are not, in any way or
degree of contribution, the result or consequence of claim-
ant’s on the job injury of July 20, 2012, nor materially
related to his work activities with Simonds International
Corp. The conditions * * * are due to non-compensable, pre-
existing conditions, and / or due to a new injury or subse-
quent work activities neither caused nor worsened by claim-
ant’s on the job injury of July 20, 2012. * * * [T]he denied
conditions * * * are not medically or legally attributable to
the claimant’s employment with Simonds International
Corp. under Oregon’s compensability standards.”
(Emphasis added.) The terms of the DCS specified that
“[t]he claimant understands and stipulates that the
denial entered in this case shall be construed to include the
contentions of First Liberty Insurance Corporation as set
forth above, and that the denial issued, including the con-
tentions of First Liberty Insurance Corporation as set forth
552 Fleming v. SAIF
above, shall forever remain in full force and effect, and that
the execution of this document shall constitute a full and
final waiver of the claimant’s right to challenge or appeal
from the denial, and the claimant stipulates and agrees that
the legal effect of this settlement shall be the same as if the
claimant admitted and agreed to the accuracy of the con-
tentions of First Liberty Insurance Corporation as set forth
above.”1
(Emphasis added.) Administrative rule did not require that,
in order to achieve settlement, claimant must admit or stip-
ulate to Simonds’s statement of the ultimate facts. See ORS
656.289(2) (DCS with board approval); OAR 438-009-0010
(required terms of a DCS).2
In exchange for his agreement to the terms of the
DCS, Liberty agreed to pay his medical bills to date, plus
$25,000.3 The parties agreed that the amounts paid were
accepted “in full settlement of all issues raised or which
could have been raised on or before the date of this agree-
ment.” The DCS explained that,
1
The document provided that claimant retained all rights he may have
for medical services under ORS 656.245, aggravation under ORS 656.273, own
motion proceedings under ORS 656.278, and vocational assistance under ORS
656.340, but the document did not provide that claimant retained rights involv-
ing a later claim for occupational disease under ORS 656.802.
2
In relevant part, OAR 438-009-0010 requires:
“(2) A disputed claim settlement shall recite, at a minimum:
“(a) The date and nature of the claim;
“(b) That the claim has been denied and the date of the denial;
“(c) That a bona fide dispute as to the compensability of all or part of
the claim exists and that the parties have agreed to compromise and settle
all or part of the denied and disputed claim under the provisions of ORS
656.289(4);
“(d) The factual allegations and legal positions in support of the claim;
“(e) The factual allegations and legal positions in support of the denial of
the claim;
“(f) That each of the parties has substantial evidence to support the fac-
tual allegations of that party;
“(g) A list of medical service providers who shall receive reimbursement
in accordance with ORS 656.313(4), including the specific amount each pro-
vider shall be reimbursed, * * *; and
“(h) The terms of the settlement, including the specific date on which
those terms were agreed.”
3
He agreed that those payments were “compensation for the consequences of
impairment which claimant anticipates will affect him for the rest of his life.”
Cite as 302 Or App 543 (2020) 553
“[f]or purposes of this agreement ‘issues raised or which
could have been raised’ includes any and all claims for new
medical conditions arising out of the claimed condition and
identified or diagnosed in the medical record to date.”
The DCS provided that
“[c]laimant agrees that by signing this Disputed Claims
Settlement agreement, claimant waives his right to file a
claim for any other condition associated with or arising out
of his denied claim, or to file a claim for civil remedies aris-
ing out of the denied claim under ORS 656.019.”
(Emphasis added.) Finally, the DCS provided that it was
not binding unless, and until, it was approved by an admin-
istrative law judge (ALJ) or the board. In July 2015, the
DCS was approved by the board.
The day after claimant signed the DCS, he filed the
present claim for his shoulder condition against Treske, his
subsequent employer, and SAIF, its insurer based upon the
same medical records. He now contended that this shoul-
der condition was the result of an occupational disease and
that his work exposure with both employers—Simonds and
Treske—should be considered. By taking that approach, he
sought to avoid needing to prove that working conditions
at Treske were the major contributing cause of his injury;
instead, he would only need to prove that Treske’s work was
the “last injurious exposure,” making Treske fully liable for
his shoulder condition. See Inkley v. Forest Fiber Products
Co., 288 Or 337, 342-43, 605 P2d 1175 (1980) (last injurious
exposure rule).
SAIF denied the claim. An ALJ upheld the denial,
treating the DCS as determining that work with Simonds
made no contribution to the conditions, pursuant to our
decision in Gilkey v. SAIF, 113 Or App 314, 832 P2d 1252,
rev den, 314 Or 573 (1992). With work for only one, not two
employers at issue, the ALJ concluded that claimant’s proof
did not establish that work with Treske was the major con-
tributing cause of a combined condition or worsening of
the diseased under ORS 656.802(2). On review, the board
agreed, emphasized the particular terms of the DCS in this
case, and affirmed the ALJ’s conclusion.
554 Fleming v. SAIF
MAJORITY OPINION
The majority opinion concludes that the board erred
in relying on Gilkey. The majority recognizes that Gilkey
involved a claim that followed a DCS, but the majority
observes that the case involved a subsequent claim against
the same employer and not a case with a claim against a sub-
sequent employer. For that reason, the majority determines
that Gilkey provides no answer. To the majority, Gilkey begs
the question. As a result, the majority turns to the autho-
rizing statute that describes a DCS. ORS 656.289(4)(a)
provides:
“Notwithstanding ORS 656.236, in any case where
there is a bona fide dispute over compensability of a claim,
the parties may, with the approval of an Administrative
Law Judge, the board or the court, by agreement make
such disposition of the claim as is considered reasonable.”
In the next paragraph of the statute, the majority finds an
answer implied on the basis that nothing more is written in
that paragraph. ORS 656.289(4)(b) provides:
“Insurers or self-insured employers who are parties to
an approved disputed claim settlement under this subsec-
tion shall not be joined as parties in subsequent proceed-
ings under this chapter to determine responsibility for pay-
ment for claim conditions for which settlement has been
made.”
The majority appropriately observes that ORS 656.289(4)(b)
provides that insurers or self-insured employers cannot be
sued again after settlement. Without more said in text, the
majority infers that, because the provision says nothing
about the effect of a DCS on a subsequent claim against
another employer, the provision necessarily implies that the
legislature “anticipated that a DCS would not conclusively
resolve factual issues for the purposes of such proceedings.”
302 Or App at 548. Essentially, the majority infers that a
DCS has no further significance for a claimant, despite the
fact that the subsequent claim includes the same record. In a
footnote, the majority candidly reports that its review found
nothing in legislative history to shed light on the intent of
the provision as concerns related claims against subsequent
employers.
Cite as 302 Or App 543 (2020) 555
In my opinion, it is ORS 656.289(4) that provides
no answer. It begs the question. The provision merely says
that, after insurers or self-insured employers have been par-
ties to a DCS, they “shall not be joined as parties in subse-
quent proceedings.” Essentially, the provision says that “a
settlement is a settlement” and says nothing more. Given
those terms, the provision implies nothing about the present
question. Yet, the majority infers that, because the legisla-
ture said that much, the legislature somehow “anticipated”
that a DCS should have no other effect. I believe that such
an inference of legislative intention is, not only unsupported
by legislative records, it is not implicit in textual silence. As
to silence in a statute, we know that our first rule of con-
struction is not to insert what has not been written. ORS
174.010.4
If legislative history does show something, it is that
ORS 656.289(4)(b) was intended to provide that “a settle-
ment is a settlement.” That itself is significant because it
says nothing more. The provision was added in 1995 with
Senate Bill (SB) 369. Or Laws 1995, ch 332, § 35. The bill
summary explained simply that the amendment “states
that once a worker and insurer have agreed on a disputed
claim settlement, the insurer cannot be compelled to attend
future hearings on the claim.” Exhibit A, Senate Committee
on Labor and Government Operations, SB 369, Jan 30, 1995
(bill summary). Later, the staff summary explained that
ORS 656.289(4)(b) “[e]liminates [any] requirement to appear
at hearing on [an] issue which has been settled.” Exhibit F,
Senate Committee on Labor and Government Operations,
SB 369, Feb 8, 1995 (statement of Staff Original Measure
Effects and Amendment Effects). It added “that once a
worker and insurer have agreed on a disputed claim set-
tlement, the insurer cannot be compelled to attend future
hearings on the claim.” Id. The legislative record confirms
that the only thing the legislature contemplated was that a
4
The familiar admonishment of ORS 174.010 says:
“In the construction of a statute, the office of the judge is simply to ascer-
tain and declare what is, in terms or in substance, contained therein, not to
insert what has been omitted, or to omit what has been inserted; and where
there are several provisions or particulars such construction is, if possible, to
be adopted as will give effect to all.”
556 Fleming v. SAIF
DCS binds the parties. Because that is so, there is no reason
to imagine that the legislature “anticipated” anything else.
Silence in legislative materials, like silence in statutory text,
does not support the majority’s answer. Without something
better, the majority’s construction of the statute—based on
its thin inference of intention—is unreasonable.
SETTLEMENTS IN WORKERS’ COMPENSATON
Rather than take guidance from silence, the court
should take guidance from the significance of settlement
within the workers’ compensation system, two signposts
in case law, issue preclusion, and a reflection on the conse-
quences of the majority’s answer. I address those topics in
turn.
Settlements in workers’ compensation are not—at
least not necessarily—merely private settlements between
private parties with no other significance to the system.
If we were to think of a compensation claim as merely a
private, personal, adversary money claim against the par-
ticular employer, then we could go on to conclude, as some
do, that settlements can freely occur without public over-
sight, protection of the settling worker, or significance to be
accorded later to settlement stipulations. See 13 Larson’s
Workers’ Compensation Law § 132.04[1] (rev ed 2019) (refer-
ring to a Kansas decision). The leading treatise comments:
“What this overlooks is that the entire compensation
system has been set up and paid for, not by the parties,
but by the public. The public has ultimately borne the cost
of compensation protection in the price of the product, and
it has done so for the specific purpose of avoiding having
the disabled victims of industry thrown on private charity
or public relief. * * * [T]he employer and employee have no
private right to thwart this objective by agreeing between
them on a disposition of the claim that may, by giving the
worker less than this amount, make the worker a potential
public burden. The public interest is also thwarted when
the employer and employee agree to a settlement which
unnecessarily increases the cost of the product by giving
the worker more than is due.”
Id. If we begin with that basic understanding, then we can
begin to find an answer to the question presented. It is an
Cite as 302 Or App 543 (2020) 557
answer that takes its guidance from how settlements of
workers’ compensation claims occur.
Under ORS 656.289(4), a DCS can occur only with
approval of an ALJ, the Workers’ Compensation Board, or a
court. That is significant. The familiar treatise explains:
“If the statute requires that a settlement have
Commission approval, a settlement lacking such approval
amounts to nothing more than a voluntary payment of com-
pensation. * * * [I]t does not rise to an ‘award’ upon which
procedures for reopening can be based, nor is it a waiver of
the right to controvert the claim.”
13 Larson’s Workers’ Compensation Law § 132.06[1] (rev
ed 2019). The effect of board approval becomes significant.
Larson’s states:
“If the settlement is approved, it takes on the quality of
an award, and the parties can no more back out of it than
any other kind of award.”
Id. at § 132.06[2]. Another treatise adds:
“Since an approved settlement agreement is given the
effect of a workers’ compensation award, its determinations
are given collateral estoppel effect.”
3 Modern Workers Compensation § 300:16 (2019); see Drews
v. EBI Companies, 310 Or 134, 140-42, 795 P2d 531 (1990)
(issue preclusion applies to issues of fact or law in adminis-
trative proceedings).
This court has treated the determinations made
after the board has approved a DCS like any other award
or decision of the board. In Southwest Forest Industries v.
Archer, 109 Or App 349, 351, 819 P2d 748 (1991), the claim-
ant had entered into a DCS with an employer and insurer
after a dispute over a back injury and psychological issues.
In the language of his DCS, he agreed that the employer’s
contentions “shall be affirmed.” Id. at 352. He worked for a
subsequent employer and had ongoing back issues, but his
claim against the subsequent employer failed when assert-
ing a new condition. Id. As for his claim against the original
employer, the board determined that his claim for aggrava-
tion was meritorious. Id. We concluded, however, that the
board erred “as a matter of law” when it did not correctly
558 Fleming v. SAIF
apply the “settlement order.” Id. at 353. The DCS had upheld
the acceptance of some injury and the denial of the psychiat-
ric claim. Id. at 351-52. We observed, “The settlement order,
however, does much more than that.” Id. at 353. That DCS,
in its stipulations, had “affirmed” that the “back problems
were unrelated to his employment, had no physical origin
and were due to psychiatric and psychological problems.”
Id. We reversed and remanded. Id. In material part, we did
so because the agreed stipulations in the DCS operated as
determinations of the ultimate facts of the claim, like any
other decision of the board. See id.
Similarly, in Wasson v. Evanite Fiber Corp., 117
Or App 246, 248, 843 P2d 1004 (1992), the claimant and
employer entered into a DCS after claims of depression and
hip and back conditions. The board treated the determina-
tion in the DCS that her depression was not compensable as
dispositive, because it was the same condition denied in the
DCS. Id. We resolved the appeal in language that regarded
the DCS as a binding determination of ultimate facts like
any other decision. We concluded:
“Claimant also argues that, by not allowing her to
relitigate issues settled by the DCS, we are denying her
an opportunity to contest an issue that would be a viable
subject for an aggravation claim if it had been resolved
through litigation. However, the DCS was a final resolution
of the compensability dispute concerning her depression.
Absent a showing that the present psychological condition
is different from the original condition permitting relitigat-
ing would undermine the finality for which employer, and
claimant bargained.”
Id. (first emphasis added; second emphasis in original).
Although circumstances vary, we have routinely
regarded the factual determinations made in a DCS to be
dispositive. See International Paper Co. v. Pearson, 106 Or
App 121, 124, 806 P2d 189 (1991) (neither party disputes
that it may not relitigate issues resolved by the DCS; the
issue comes down to what, precisely, was resolved); Miller v.
Coast Packing Company, 84 Or App 83, 88-89, 733 P2d 97,
rev den, 303 Or 534 (1987) (DCS absolved second employer
of responsibility; claimant is bound by its determination);
Cite as 302 Or App 543 (2020) 559
Proctor v. SAIF, 68 Or App 333, 335, 681 P2d 161 (1984)
(claimant is bound by determination of DCS and can recover
only if he has developed a new condition). What is important
to observe about those cases is what they represent in the
workers’ compensation system. In those cases, a DCS is not
a mere release of a worker’s claim against an employer—
as if whatever may have been stipulated does not matter.
Rather, the DCS was an approved determination, accord-
ing to its stipulations as to the ultimate facts. Those factual
stipulations, if any, bound the claimant.
Like the majority, I recognize that these cases
happen to be examples of disputes that arose between the
claimant and the original employer who were parties to
a DCS. Unlike the majority, I emphasize that a DCS is a
unique form of settlement that takes place in the context
of the workers’ compensation system, that may or may not
contain stipulations about the ultimate facts, and that is
required to be approved by an ALJ or the board. To distin-
guish a DCS from a private party agreement that has no
other significance to a claimant or others, it helps to see that
a DCS is one of the more formal forms of settlement in the
workers’ compensation system. That is because the admin-
istrative regulation of settlement suggests that such formal
settlements have a broader significance in the workers’ com-
pensation system than a private settlement outside workers’
compensation.
In Simmons v. Lane Mass Transit District, 171 Or
App 268, 271-74, 15 P3d 568 (2000), we reviewed the three
types of formalized settlements in the workers’ compensa-
tion system. A DCS, as contemplated by ORS 656.298(4)(a),
is defined in OAR 438-009-0001(2) as a written agreement
by which the parties make a reasonable disposition of a
claim involving a bona fide dispute over the compensability
of a claim. Simmons, 171 Or App at 272. That is to say, a DCS
involves a claim that has been denied. Id. The rule “requires
the parties to provide information to the Board, along with
assurances that the claimant has been thoroughly informed
of the effect of the DCS, before the Board will approve it.” Id.
A claim disposition agreement (CDA), as contem-
plated in ORS 656.236, is defined in OAR 438-009-0001(1)
560 Fleming v. SAIF
as a written agreement in which a claimant releases rights,
an insurer, or a self-insured employer from obligations,
except for medical services. Unlike DCS, a CDA involves
an accepted claim. Simmons, 171 Or App at 272. Both
types of settlements are required to be written, require
that claimant be advised, and require that their provisions
are reviewed and approved by an ALJ or the board. ORS
656.289(4) (DCS); ORS 656.236(1) (CDA).
A third type of settlement is a “settlement stipula-
tion,” for situations that are not suited to a DCS or CDA.
Simmons, 171 Or at 273. A “settlement stipulation” need
not be written, may be made orally by stipulation, does not
require that claimant be advised of any specific information,
and sets no criteria for the ALJ’s approval. OAR 438-009-
0005; Simmons, 171 Or App at 273.
The common feature among all three forms of settle-
ments in the workers’ compensation system is that they are
not merely private settlements. They are not divorced from
the adjudicatory process of workers’ compensation. In par-
ticular, a DCS is a written disposition of a claim, concluding
in denial, that cannot be accomplished without warnings to
the claimant and cannot be effective without a decision of an
ALJ or the board that concurs in the disposition based on
the stipulations and other information provided.
Case law, recounted above, confirms that the dis-
position accomplished by a DCS is no less significant than
that of an award made by the board in a contested decision.
The only open question, presented by this case, is whether
an exception should be made to treat a DCS as anything less
than a decision of the board when claimant brings a claim—
here based on the same medical records—against a succes-
sive employer while attempting to deny his stipulations on
ultimate facts contained in a DCS approved by the board.
WHEN A DCS IS A STIPULATED JUDGMENT
If we return to the text of the statute, we are
reminded that a DCS is not a mere private settlement. It is
not outside the workers’ compensation system. We are told in
ORS 656.289(4)(a) that the parties may, “with the approval
of an Administrative Law Judge, the board or the court, by
Cite as 302 Or App 543 (2020) 561
agreement make such disposition of the claim as is considered
reasonable.” (Emphases added.) The “approval” and “consid-
ered reasonable” language means that no DCS is effective
unless and until an ALJ, the board, or a court approves.
The parties must agree that the DCS is reasonable, but stat-
ute does not delegate to the parties the ultimate decision
about what is reasonable. Instead, the statute requires that,
as here, the board must act to make the determinations
required. Under OAR 438-009-0010(2) and (7), the approval
process is based on the information required and the stipu-
lations reached. The statute and rule require that the board
engage in the claim, consider the conflicting allegations,
review stipulations on the merits, if any, and agree with the
parties’ proposed disposition. Under both statute and rule,
it is the board that must “consider” that the “disposition”
is reasonable. ORS 656.289(4); OAR 438-009-0010(7). To be
reasonable requires that the disposition be one permitted
by law, be consistent with the ultimate facts recited in any
stipulations reached, and be consonant with the workers’
compensation system. See, e.g., EBI Companies v. Freschette,
71 Or App 526, 531, 692 P2d 723 (1984), rev den, 298 Or
822 (1985) (holding that a DCS violated the statutory pro-
hibition against releases). The engagement of the board, in
reviewing any stipulations on the merits, makes the DCS a
determination of the board like any other determination in
any other award. Simply put, a DCS—particularly one with
factual stipulations on the merits—has no less significance
than a stipulated judgment. And, a stipulated judgment has
the same effect as judgment after a trial on the merits. See
Webber v. Olsen, 330 Or 189, 196, 998 P2d 666 (2000) (“A
stipulated judgment has the same effect as a judgment that
is entered after a trial on the merits of a claim.”).
From the cases reviewed above, we know that a
DCS is like a stipulated judgment. In Archer, the DCS did
“much more” than serve as a settlement agreement to make
a claim go away; it “affirmed” the factual determination
that the claimant’s back problems were “unrelated to his
employment.” 109 Or App at 353. In Wasson, the DCS estab-
lished with “finality” that the psychological condition had
already been determined not to be compensable. 117 Or App
at 248; see also Miller, 84 Or App at 88-89 (claimant bound
562 Fleming v. SAIF
by factual determination of responsibility); Proctor, 68 Or
App at 335 (claimant bound by prior determination of prior
condition). Although such cases involve claims against the
same employer, the cases are resolved on the basis of the
determinations of ultimate facts made in the DCS. Those
determinations are the public determinations made in the
sequence of a particular worker’s claims that may be ongo-
ing in a sequential manner of claims within the workers’
compensation system. If determinations are made—whether
by stipulation or contested claim—it makes no sense to treat
approved determinations of fact as binding on claimant only
as to a prior employer, but not binding on claimant as to the
same facts in the current claim as to a successive employer.
Our statute, administrative rule, and case law do not imply
that the approved, factual determinations in a DCS should
be ignored, deemed irrelevant, or assumed to be insignifi-
cant thereafter.5
As this court observed in International Paper Co.,
106 Or App at 124, the issue should not be whether the DCS
can resolve factual issues in a stipulated disposition. Instead,
“[t]he issue come down to what, precisely, was resolved by
the settlement.” (Emphases added.) In a case like this, that
question is: What, if anything, were the stipulated state-
ments of ultimate fact in the DCS at hand? As is apparent in
OAR 438-009-0010(2)(e), the parties do not need to go so far
as to agree to one set of ultimate facts. Instead, they could
simply recite their conflicting “factual allegations and legal
positions” and leave it at that. Or, in the alternative, they
may choose to stipulate to one set of ultimate facts in resolv-
ing a claim in a DCS. That choice rests with the parties. The
result of different choices is reflected in two cases that, like
signposts, point to very different results depending whether
parties included or omitted agreed stipulations of ultimate
facts in a DCS.
5
Taking the opposite view, the claimant here argues that, “while [the DCS]
binds claimant legally, it does not bind him factually to the employer’s conten-
tions.” He argues that, because he disputed the employer’s contentions, “claimant
may in the later claim and litigation against a different employer continue to
make the same [original] contentions.” Claimant, however, ignores that, after
the recital of conflicting contentions, he stipulated to the employer’s statements
of ultimate fact that declared the Simonds’s work exposure not to be a cause
of injury or need for treatment. He did stipulate “factually to the employer’s
contentions.”
Cite as 302 Or App 543 (2020) 563
In Gilkey, the ultimate facts determined in a prior
DCS proved dispositive. 113 Or App at 317. That claimant
suffered an initial hip injury that was compensable and even-
tually was closed. Id. at 316. Two years later, the claim was
reopened in contemplation of hip surgery for degenerative
changes. Id. SAIF denied compensability. Id. Nevertheless,
claimant and SAIF entered into a DCS that provided that
SAIF would pay $4,000. Id. It was agreed that the denial
would “remain in full force and effect” and that claimant
understood that there would be no future recourse for medi-
cal care or benefits arising out of the Workers’ Compensation
Act as a result of the degenerative hip disorders involving
congenital dysplasia of both hips or degenerative osteo-
arthritis of the left hip. Id. Four years later, claimant’s hip
pain increased and he filed an occupational disease claim
with SAIF and Liberty Northwest Insurance Corporation,
a successor insurer. Id. Both insurers denied the disease
claim. Id.
The board made four determinations: (1) that the
hip condition had worsened more than might be expected by
virtue of aging alone; (2) that the DCS had the effect of estab-
lishing that the degenerative hip condition as it existed on
the date of the DCS was entirely the result of noncompensa-
ble causes; (3) that claimant was barred by claim and issue
preclusion from arguing that the original injury contributed
to the hip condition; and (4) that the claimant had failed
to show that work was the major contributing cause of the
worsening. Id. at 316-17.
On review, SAIF and claimant agreed that claim
and issue preclusion did not apply. Id. at 317. Recognizing
the parties’ agreement on the point, we remarked that claim
and issue preclusion did not apply. Id. However, the ques-
tion of claim or issue preclusion was not disputed by the
parties, was not developed in arguments, and was not an
issue that was essential for our opinion in Gilkey. See id.
We decided the appeal on another basis. In other words, our
remark about issue preclusion was dictum. See Halperin v.
Pitts, 352 Or 482, 494, 287 P3d 1069 (2012) (describing as
dicta prior comments in decision where there was no dispute
presented); State ex rel. Roberts v. Olcott, 94 Or 633, 651-52,
187 P 286 (1920) (“[Q]uestions not fairly within the issue
564 Fleming v. SAIF
made by the pleadings and presented to the court cannot
be authoritatively passed upon in any case, and, if the court
goes outside of these questions and decides others which are
not before it, its utterance is a mere dictum which binds no
one.”); State v. Zimmerman, 170 Or App 329, 334, 12 P3d
996 (2000) (noting that, in at least two prior cases, the
court stated that second-degree robbery is a lesser included
offense of first-degree robbery, but, because the issue was
not squarely presented in either case and the statement was
not essential to the disposition of either decision, the court
declined to follow the dicta of those decisions).
On appeal, the parties disputed the board’s other
determinations, and, accordingly, we addressed those other
issues. Gilkey, 113 Or App at 317. Specifically, we upheld
with the board’s second determination that the terms of the
prior DCS established the particular, ultimate facts. Id. We
observed that,
“by virtue of the DCS, the parties have agreed that there is
no compensable relationship between the 1975 injury and
claimant’s degenerative hip condition. They are bound by
that agreement, and the 1975 injury cannot be regarded as
having contributed to claimant’s present condition.”
Id. (emphasis in original). In so saying, we concurred with
the board’s treatment of the DCS as determining those
facts. Id. We approved the board’s statement that, by reason
of the DCS, the prior injury “has been found by law to have
no effect” and that the remaining evidence did not establish
work activities as the major contributing cause of the cur-
rent condition and resultant surgery. Id. In other words, the
specific terms of the claimant’s prior DCS were binding on
the claimant when he later presented a related claim involv-
ing the same medical history.
In contrast, a DCS that lacked express admissions
proved not to be an obstacle to a subsequent claim in Bennett
v. Liberty Northwest Ins. Corp., 128 Or App 71, 73, 875 P2d
1176 (1994). Originally, the claimant began noticing a hear-
ing loss while working in noisy conditions for Caterpillar,
Inc. Id. He continued working in noisy conditions for Siltec
Corporation and filed a claim against both employers for
hearing loss. Id. Both employers denied the claim as a
Cite as 302 Or App 543 (2020) 565
condition not arising out of its employment. Id. Caterpillar,
however, entered into a DCS with the claimant. Id. In that
agreement, the two parties agreed that there was a bona
fide dispute and that both parties had “evidence [in respect
of] their respective positions.” Id. Caterpillar agreed to pay
$7,500, and claimant agreed he would take no other bene-
fits on account of the claim. Id. at 73-74. The claim against
Siltec, the second employer, went to hearing. Id. at 74. A
hearings referee and the board affirmed the denial. Id.
On review before this court, the claimant contended
that he had not elected to prove his case solely against the
second employer Siltec. Id. at 75. Siltec contended that he
had elected to prove the claim solely against it. Id. We recog-
nized that a claimant could choose to make its case against
a single employer but that the claimant Bennett had made
claims against both employers. Id. at 78. In critical part, we
noted that
“[t]he DCS does not, by its terms, evidence an agreement by
claimant that work at Caterpillar did not contribute in any
way to claimant’s loss of hearing; nor does it by its terms
indicate an election to prove actual causation as against
Siltec. There is nothing in the DCS with Caterpillar that
shows an election to prove actual causation against Siltec.”
Id. (emphasis added). Because the DCS did not admit that
activities at Caterpillar played no role, we held that the
claimant may include conditions there as part of his proof
of employment as a major contributing cause of his hearing
loss. Id. Accordingly, the claim against Siltec could be deter-
mined according to the last injurious exposure rule.6 Id.
Paired as signposts, Gilkey and Bennett show the
differing effects of a DCS that does or does not include a
set of ultimate facts expressed in stipulations and approved
by the board.7 In this case, the terms of the DCS are more
like those in Gilkey than those in Bennett. Here, the stipu-
lated admissions in the DCS, duly approved by the board,
resolved the claim against the prior employer Simonds with a
6
The dissent disagreed that the last injurious exposure rule should apply
when it was uncontroverted that the disability was caused by exposure during
the earlier employment. Bennett, 128 Or App at 79-82 (Edmonds, J., dissenting).
7
The difference in outcomes is a precautionary note for parties’ lawyers.
566 Fleming v. SAIF
determination that the then-current conditions were “not, in
any way or degree of contribution, the result or consequence
of claimant’s on the job injury * * *, nor materially related to
his work activities with Simonds * * *.” Claimant’s shoulder
problems were “non-compensable, preexisting conditions,
and/or due to a new injury or subsequent work activities
neither caused nor worsened by claimant’s on the job injury
* * *.” Specifically, claimant’s conditions were determined to
be “not medically or legally attributable to the claimant’s
employment with Simonds.” (Emphasis added.) Claimant
“admitted and agreed” to those statements in resolution of
the claim. He did so reserving particular rights as to the
original claim with specific statutory references but he did
so without reserving rights to treat the past claim as part of
a potential occupational disease claim under ORS 656.802.
He specifically waived his right to “file a claim for any other
condition associated with or arising out of his denied claim.”
In all, claimant’s stipulations were specific, concrete, numer-
ous, and just determinative as those in Gilkey.
To be sure, the majority is correct that Gilkey did not
involve a subsequent claim against a successive employer. I
agree that something more is required to explain why the
claimant’s stipulations or the board’s determinations in an
approved DCS, when recognized as determinations of the
board, should be regarded as binding on claimant in the
next claim against the subsequent employer. The general
answer has already been broached with reference to the
nature of the workers’ compensation system: “If the set-
tlement is approved, it takes on the quality of an award,”
13 Larson’s Workers’ Compensation Law § 132.06[2], and,
“[s]ince an approved settlement agreement is given the
effect of a workers’ compensation award, its determina-
tions are given collateral estoppel effect,” 3 Modern Workers
Compensation § 300:16.
Oregon law recognizes that issue preclusion applies
to administrative proceedings, provided that the tribunal’s
decision-making process include certain requisite character-
istics. Drews, 310 Or at 142. Our law recognizes that issue
preclusion may apply either to conclusions of law or findings
of fact. Id. at 140. And, issue preclusion applies to workers’
compensation determinations. Id. at 142. Our requirements
Cite as 302 Or App 543 (2020) 567
are that (1) the issue in the proceedings is the same; (2) the
issue was actually litigated and essential to a final determi-
nation on the merits in the prior proceeding; (3) the party
sought to be precluded had a full and fair opportunity to be
heard on the issue; (4) the party sought to be precluded was
a party or in privity with a party in the prior proceeding;
and (5) the prior proceeding was the type of proceeding to
which the court will give preclusive effect. Nelson v. Emerald
People’s Utility Dist., 318 Or 99, 104, 862 P2d 1293 (1993).
In this case the requisites for issue preclusion are
satisfied: (1) The issue of the role of claimant’s Simonds work
to his injury was the same in the prior proceeding. (2) The
issue was actually litigated in a disputed claim and resolved
with finality in a DCS with stipulations of ultimate facts,
making the DCS the functional equivalent of a stipulated
judgment. (3) Claimant had a full and fair opportunity to lit-
igate his claim. (4) Claimant was the same party in the prior
claim. (5) And determinations of the board are the kind of
administrative determinations to which the court accords
finality.8
Given issue preclusion, the stipulations of ultimate
fact contained in a prior DCS should be the starting point
for a subsequent claim, like any other prior factual deter-
mination of the board in any other prior decision, whether
against the same employer (e.g., an aggravation claim) or
another employer (e.g., a disease claim). That is so because
a DCS determination, when made with stipulations of ulti-
mate facts, is but a part of one person’s continuing history in
the workers’ compensation system. To recognize that such
a DCS is part of this worker’s history does not mean that
he would necessarily be denied subsequent workers’ com-
pensation benefits. It only means that the appropriate stan-
dard of compensability would be proof that the subsequent
8
If I am mistaken in reading our remark in Gilkey as dictum, then that
remark should be reconsidered and rejected as “plainly wrong.” See State v. Civil,
283 Or App 395, 407-17, 388 P3d 1185 (2017) (examining what was not addressed
in a prior decision; describing prior decision to be overruled when “plainly
wrong”); see also Farmers Ins. Co. v. Mowry, 350 Or 686, 692-99, 261 P3d 1 (2011)
(discussing considerations for overruling erroneous decisions). The remark was
made in the absence of developed briefing on an issue, about an issue that was
not disputed on appeal, and before the Supreme Court updated and articulated
its exegesis on issue preclusion in Nelson. See 318 Or at 104.
568 Fleming v. SAIF
employment was the major contributing cause of his injury
or need for treatment.
The conclusion—that a prior DCS with stipulations
matters in a subsequent claim—is reinforced when reflect-
ing on the consequences of the opposite conclusion posed
by the majority’s opinion. The consequences are untenable,
in one way or another, regardless whether we view a DCS,
because it pays benefits, as implying claimant suffered work-
related harm despite stipulations to the contrary, or we view
the DCS, because it says so, as determining that the prior
employment with Simonds was not a cause of injury or need
for treatment.
One untenable consequence of the majority’s deci-
sion is inconsistent standards. Although claimant stipu-
lated that work for a prior employer had no relationship to
his condition, the standard for the next employer’s liability
reduces to the “last injurious exposure” standard, rather
than remain at the “major contributing cause” standard that
ordinarily applies when only the second employer’s work is
at issue. Another worker, whose only exposure to injury
occurred with the second employer, would need to prove
compensability by the “major contributing cause” standard.
Although this claimant stipulated that prior employment
was not a cause of his condition, this claimant would prove
compensability with an inconsistent, lesser standard of “last
injurious exposure.” Those two workers, working for the
same employers with seemingly the same work exposures,
would have two different legal standards of compensability.
Another untenable consequence of the majority’s
decision is the prospect of double recovery—in whole or in
part. Although claimant has recovered the benefits of a DCS
with the first employer requiring payment of all medical bills
to date and the further sum of $25,000 for his shoulder con-
dition, he can recover benefits again from a second employer
based on the same set of medical records. To be sure, it is
difficult to imagine how claimant could claim a right to keep
payment for medical bills already paid, but, then again, tort
law allows a personal injury plaintiff to retain the mea-
sure of damages that is the full face amount medical bills
despite the fact “write-offs” meant that a lesser sum actually
Cite as 302 Or App 543 (2020) 569
satisfied the billing of medical providers. White v. Jubitz
Corp., 347 Or 212, 236-37, 219 P3d 566 (2009). Although the
prospect of claimant retaining a second payment of medical
bills should somehow be impermissible within the workers’
compensation system, claimant has not offered any sugges-
tion how that would be avoided.
More to the point, claimant has not suggested that
he would offset the $25,000 already received for his shoul-
der condition against the award of disability he seeks for
the same condition as against his second employer. His prior
recovery may or may not have been adequate; it could have
been a compromised sum on disputed compensability. But,
he does s eek additional recovery for the same condition
without any consideration of the prior award already recov-
ered with the DCS. It stands to reason that, in a different
case, a claimant may make a favorable settlement with a
first employer and make no stipulations of ultimate fact that
would bind the claimant in a later claim against a subse-
quent employer. Yet, here, it seems untenable that a claim-
ant who does make stipulations of ultimate fact, which the
board adopts in a DCS, may disclaim those stipulated facts
and expect the board to ignore them, permitting him the
potential to recover twice for the same injury.9
Claimant, no doubt suffering disability whether
from work or nonwork related causes, cannot be faulted for
seeking to maximize his benefits. Nor can his employers be
faulted for seeking appropriate determination of compensa-
bility. Only we can be faulted if our answer shortchanges a
claimant or forces employers to overpay for the same injury.
CONCLUSION
For all the reasons reviewed here, the DCS should
be treated like a stipulated judgment when it contains stip-
ulations of ultimate facts. We should recognize that, after
9
Outside of workers’ compensation in the world of personal injury, an injured
party may keep a settlement sum that is more favorable than the settled party’s
percentage share of fault, but the settled party’s percentage share of fault is
nonetheless determined by a jury as among blameworthy parties, and that set-
tled party’s percentage of fault does reduce recoverable damages against the non-
settling defendant. See ORS 31.600(2) (determination of settled party’s share of
fault); ORS 31.610(2) (court shall determine the award of damages in accordance
with the percentages of fault determined by the trier of fact).
570 Fleming v. SAIF
board approval, a DCS with such stipulations represents the
board’s determinations. Nothing in statute or rule requires
the board to disregard its prior determinations. Because
that is so, the board did not err in recognizing that the fac-
tual terms of the DCS required that claimant prove that
work conditions, other than those involving Simonds, were a
major contributing cause of his shoulder condition. All agree
that claimant’s evidence failed to address whether his work
with Treske (alone) met that standard. Therefore, I believe
that the board acted with substantial evidence and reason
when concluding that claimant had not carried his burden
of proof.
I respectfully dissent.