Saif Corp. v. Thompson

No. 52 August 4, 2016 155

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Compensation of

Roger J. Thompson, Claimant.

SAIF CORPORATION

and Clackamas County Fire District #1,

Respondents on Review,

v.

Roger J. THOMPSON,

Petitioner on Review.

(WCB 10-06391; CA A152618; SC S063020)

On review from the Court of Appeals.*

Argued and submitted November 12, 2015.

Nelson R. Hall, Bennett Hartman Morris and Kaplan,

Portland, argued the cause for petitioner on review.

Julie Masters, Appellate Counsel, SAIF Corporation,

Salem, argued the cause and filed the brief for respondents

on review.

Sara Ghafouri, Haglund Kelley, LLP, Portland, filed the

brief for amicus curiae Oregon Trial Lawyers Association.

Sarah K. Drescher, Tedesco Law Group, Portland,

filed the brief for amicus curiae International Association

of Fire Fighters. With her on the brief were Thomas A.

Woodley, David Ricksecker, and Sara A. Conrath, Woodley

& McGillivary, Washington, D.C.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, Brewer, and Nakamoto, Justices.**

KISTLER, J.

The decision of the Court of Appeals is reversed. The

order of the Workers’ Compensation Board is affirmed.

______________

**  On judicial review of an order of the Workers’ Compensation Board, dated

September 7, 2012. 267 Or App 356, 340 P3d 163 (2014).

**  Linder, J., retired December 31, 2015, and did not participate in the deci-

sion of this case.

156 SAIF v. Thompson

Case Summary: Claimant, while employed as a firefighter, suffered a heart

attack caused by atherosclerosis. Claimant filed a claim for workers’ compensa-

tion benefits and relied on a statutory presumption that his condition was a com-

pensable occupational disease. According to the presumption, a worker who suf-

fers from certain diseases or conditions while employed as a firefighter is entitled

to workers’ compensation, unless an employer demonstrates that the disease or

condition is unrelated to employment. ORS 656.802(4). Claimant sought benefits

from his employer and employer’s insurer, SAIF, denied the claim. SAIF relied on

expert medical testimony; according to SAIF’s expert, the causes of atherosclero-

sis are not known, but atherosclerosis is not caused by firefighting. The Workers’

Compensation Board reversed, explaining that SAIF failed to meet its burden of

persuasion to prove by clear and convincing evidence that claimant’s condition

was unrelated to his employment. The Court of Appeals reversed and held that

the board impermissibly required SAIF to put on evidence of an alternative cause

of claimant’s atherosclerosis. Held: (1) Once a claimant establishes the predicate

facts giving rise to the firefighters’ presumption, the burdens of production and

persuasion shift to the employer to prove that the condition is unrelated to fire-

fighting; (2) the Court of Appeals erred in determining that the board required

proof of an alternative cause. The board reasonably determined that SAIF’s evi-

dence was not persuasive because it was inconsistent, not because SAIF failed to

offer evidence of an alternative cause.

The decision of the Court of Appeals is reversed. The order of the Workers’

Compensation Board is affirmed.

Cite as 360 Or 155 (2016) 157

KISTLER, J.

The question in this workers’ compensation case

is how a statutory presumption, colloquially known as the

“firefighters’ presumption,” applies. See ORS 656.802(4)

(stating that presumption).1 In this case, no one disputes

that claimant proved the predicate facts, which gave rise

to a presumption that his heart attack “result[ed] from” his

work as a firefighter and thus was an occupational disease.

See id. No one also appears to dispute that the effect of the

presumption was to shift the burden of persuasion to SAIF

to prove by clear and convincing evidence that “the cause

of [claimant’s] condition [wa]s unrelated” to his work as a

firefighter. See id. (stating that requirement).

After considering SAIF’s medical evidence, the

Workers’ Compensation Board (board) found that the evi-

dence did not satisfy SAIF’s burden of persuasion and

entered an order finding that claimant’s heart attack was

a compensable occupational disease. The Court of Appeals

reversed. SAIF v. Thompson, 267 Or App 356, 340 P3d 163

(2014). It reasoned that the board had implicitly and incor-

rectly concluded that only one type of medical evidence (evi-

dence of risk factors unique to the claimant and unrelated

to his work) would rebut the presumption. Id. at 364-65.

Having determined that the board applied an incorrect legal

rule, the Court of Appeals reversed its order. Id. at 367. We

allowed claimant’s petition for review and now conclude that

the Court of Appeals misperceived the basis for the board’s

order. We also conclude that the board reasonably found, on

the evidence before it, that SAIF had failed to satisfy its

1

ORS 656.802(4) provides:

“Death, disability, or impairment of health of firefighters of any political

division who have completed five or more years of employment as firefight-

ers, caused by any disease of the lungs or respiratory tract, hypertension or

cardiovascular-renal disease, and resulting from their employment as fire-

fighters is an ‘occupational disease.’ Any condition or impairment of health

arising under this subsection shall be presumed to result from a firefighter’s

employment. However, any such firefighter must have taken a physical exam-

ination upon becoming a firefighter, or subsequently thereto, which failed to

reveal any evidence of such condition or impairment of health which preex-

isted employment. Denial of a claim for any condition or impairment of health

arising under this subsection must be on the basis of clear and convincing

medical evidence that the cause of the condition or impairment is unrelated

to the firefighter’s employment.”

158 SAIF v. Thompson

burden of persuasion. We accordingly reverse the Court of

Appeals decision and affirm the board’s order.

Before setting out the facts in this case, we first

describe the statutory context in which the case arises.

Ordinarily, workers seeking compensation for an “occupational

disease” must “prove that employment conditions were the

major contributing cause of the disease.” ORS 656.802(2)(a);

see also ORS 656.802(1) (defining “occupational disease”).

However, in 1961, the Oregon Legislature adopted a statu-

tory presumption that, if the claimant established certain

predicate facts, the claimant’s condition resulted from his

or her employment and was an occupational disease. See Or

Laws 1961, ch 583, § 1. Proponents of the bill explained that,

according to statistical studies, firefighters are more likely

than other occupations to develop heart and lung diseases,

due to smoke and gas exposure in strenuous conditions, and

that firefighters should not bear the burden of demonstrat-

ing that a disease or condition was caused by firefighting.

See Minutes, Senate Labor and Industries Committee, HB

1018, Mar 8, 1961. The legislature accordingly established

a “disputable presumption” that firefighting causes certain

types of occupational diseases. See Minutes, House Labor

and Industries Committee, Feb 2, 1961, p 2. The legislature

amended the statute in 1977 by clarifying that a claim could

be denied “on the basis of medical or other evidence that

the cause of the fireman’s condition or impairment [was]

unrelated” to firefighting. See Or Laws 1977, ch 734, § 1 (so

providing).

In Wright v. SAIF, 289 Or 323, 613 P2d 755 (1980),

this court explained that the statute, as amended in 1977,

created a disputable presumption, that the effect of the

presumption was to shift the burden of production to the

employer, and that, if an employer met its burden of produc-

tion, then the trier of fact had to determine which way the

evidence preponderated. Id. at 331-32.2 The court did not

decide whether the presumption also shifted the burden of

persuasion to the employer; rather, the court left open the

2

As we read Wright, the court used the phrase “disputable presumption” as

a synonym for “rebuttable presumption.” See Wright, 289 Or at 331-32; cf. State v.

Dahl, 336 Or 481, 486, 87 P3d 650 (2004) (discussing rebuttable presumptions).

Cite as 360 Or 155 (2016) 159

question of what effect the presumption would have if the

evidence were in equipoise. Id. at 331 n 5. It noted that the

members of what was in that case a four-person court were

equally divided on that question. Id.

In 1983, the legislature addressed the question

that the court had left open in Wright. At the request of

the Oregon State Fire Fighters Council, Representatives

Whallon and Gold introduced House Bill (HB) 2700 (1983).

As originally introduced, HB 2700 would have made the

firefighters’ presumption conclusive; that is, if a firefighter

suffered from a heart or lung condition, established that he

or she had served as a firefighter for at least five years, and

proved that a physical examination failed to reveal that the

condition preexisted the firefighter’s employment, then it

would be conclusively presumed that the condition resulted

from employment. Bill File, HB 2700, Mar 30, 1983.

A representative of the Oregon State Fire Fighters

Council explained that the presumption should be conclusive

because some “medical practitioners * * * do not believe that

physical and mental stress causes heart disease.” Testimony,

House Committee on Labor, HB 2700, Mar 30, 1983, Ex E

(statement of Tom Whelan). In the Council’s view, employers

could defeat the current presumption by simply finding “one

or more physicians to say that in their opinion the condition

did not result from the workplace.” Id.

Representatives from local governments opposed

making the presumption conclusive. The personnel director

for the City of Salem testified that a conclusive presump-

tion would increase the number of compensable claims

because cities and other employers would be unable to show

that a firefighter’s cardiovascular or pulmonary disease

was “primarily the result of non-firefighting employment

related risk factors such as outside employment, smoking,

hypertension, heredity, [gender], obesity, sedentary life-

style and age.” Testimony, House Committee on Labor, HB

2700, Apr 13, 1983, Ex E (statement of Darrell Dearborn).

He explained that “[o]ur princip[al] concern with this bill

is that it removes in total any possibility that medical evi-

dence can be introduced to challenge compensability.” Id.

Similarly, the Assistant City Attorney for the City of Salem

160 SAIF v. Thompson

argued that a conclusive presumption would establish “a

rule of law, not a factual presumption[,] * * * [meaning that

an] employer can submit no evidence of any other contribut-

ing factors to the firefighter’s condition, such as heredity, or

a lifetime of heavy smoking to support a denial of the claim.”

Testimony, House Committee on Labor, HB 2700, Apr 13,

1983, Ex F (statement of Jeannette Launer).

In response to those concerns, the Oregon State

Fire Fighters Council offered an amendment to “clarify the

bill and deal with the concerns of the opponents.” Minutes,

House Committee on Labor, Subcommittee on Workers’

Compensation Benefits, HB 2700, Apr 20, 1983, p 2. The

amended bill no longer made the presumption conclusive. It

provided that, if the claimant proved certain predicate facts,

it would be presumed that the claimant’s condition resulted

from his or her employment as a firefighter. Employers could

deny a claim only “on the basis of clear and convincing med-

ical evidence that the cause of the condition or impairment

is unrelated to the [firefighter’s] employment.” Bill File, HB

2700, A-Engrossed Bill, Apr 19, 1983. The bill, as amended,

passed both houses and was signed by the governor.

The 1983 amendment made two propositions clear.

First, if a claimant proved the predicate facts, then the

presumption shifted both the burden of production and

the burden of persuasion to the employer to prove that the

claimant’s “condition or impairment is unrelated to the fire-

fighter’s employment.” Second, the employer must prove that

fact by clear and convincing evidence.3 The text and the leg-

islative history, however, do not provide as clear an answer

to the question that the Court of Appeals addressed in this

case—whether only evidence of individual risk factors that

are unrelated to employment may be offered to meet the

employer’s burden.4

3

In increasing the standard of proof to clear and convincing evidence, the

1983 amendment did not change the type of the evidence necessary to satisfy the

burden of persuasion. For a cogent explanation of how standards of proof allocate

risk and the public policies underlying those choices, see In re Winship, 397 US

358, 368-372, 90 S Ct 1068, 25 L Ed 2d 368 (1970) (Harlan, J., concurring).

4

The usual sources of legislative intent look in different directions on that

issue. On one hand, the text of the amended statute refers to “medical evidence”

without limitation. On the other hand, the employers’ testimony that persuaded

Cite as 360 Or 155 (2016) 161

In summary, ORS 656.802(4), as amended in 1983,

provides that a claimant must prove three predicate facts to

establish the firefighters’ presumption: (1) the claimant was

employed for five or more years as a firefighter for a political

division; (2) the claimant’s death, disability, or impairment

of health was caused by one of the listed diseases; and (3) a

physical exam failed to reveal that the condition or impair-

ment preexisted employment. If a claimant proves those

predicate facts, then the statute establishes a rebuttable

presumption that the condition or impairment “result[ed]

from [the] firefighter’s employment” and is an “occupational

disease.” ORS 656.802(4). The burden of both production

and persuasion then shifts to the employer to prove by “clear

and convincing medical evidence that the cause of the condi-

tion or impairment is unrelated to the firefighter’s employ-

ment.” Id.

With that background in mind, we turn to the facts

in this case. Claimant began working as a firefighter in

1991. In 2010, at the age of 44, claimant felt chest discom-

fort while using a treadmill and an elliptical machine at the

fire station. Two days later, while off duty, he experienced

muscular discomfort in his chest and neck, which prompted

him to seek medical treatment. Claimant’s cardiologists

concluded that he had had a heart attack, and they deter-

mined that the heart attack was caused by atherosclerosis—

essentially, a blocked artery due to coronary artery disease.

The cardiologists successfully treated claimant with angio-

plasty and stenting of the artery.

Claimant had no prior indication of cardiovas-

cular disease. He had had a physical examination before

his employment as a firefighter and also periodic physical

examinations after he began working as a firefighter. None

of those examinations revealed evidence of cardiovascular

disease. Furthermore, claimant’s cardiologists determined

that he had no known family history of cardiovascular dis-

ease or common risk factors for cardiovascular disease,

the 1983 legislature to make the presumption rebuttable focused on the need to

present one type of medical evidence—individual risk factors unrelated to work—

to rebut the presumption. However, no witness expressly addressed whether that

type of medical evidence was the only medical evidence that an employer could

use to rebut the presumption.

162 SAIF v. Thompson

such as diabetes, obesity, high cholesterol, hypertension, or

tobacco use.

Following his heart attack, claimant filed a work-

ers’ compensation claim on the ground that his underlying

cardiovascular condition—atherosclerosis—resulted from

his employment as a firefighter and was a compensable

occupational disease. Claimant did not offer any medical

evidence to prove that his work caused his atherosclerosis.

Rather, he relied on the firefighters’ presumption. See ORS

656.802(4). Claimant contended, and SAIF did not dispute,

that claimant had established the predicate facts: he had

been employed for at least five years as a firefighter; he had

a cardiovascular disease; and his physical examinations

failed to reveal that his condition preexisted his employment.

After receiving his claim, SAIF asked claimant to

undergo an independent medical examination by Dr. Semler.

Semler examined claimant and also reviewed his medical

records. Semler issued a report that began by setting out

the question that Semler understood he had been asked to

address:

“Because this worker is filing a claim for an occupational

disease, he must establish that his life long work exposure

is the most significant factor in the development of his con-

dition. In other words, work by itself must outweigh the

significance of all other pertinent factors combined. We are

asking you to determine the major cause of the condition[.]”5

In answering that question, Semler explained that “[t]he

exact etiology for atherosclerosis is not definitely known.”

He noted that, in reviewing the medical literature, he had

“not found any scientific evidence that firefighting per se

leads to atherosclerosis or hardening of the arteries.” He

identified certain “theories” as to why a person’s arteries

might become blocked but found that none applied in claim-

ant’s case. After observing that “[a]therosclerosis is more

in keeping with the aging process in [claimant’s] case,” he

concluded that “it is highly probable that [claimant’s] work

as a firefighter is not the major contributing cause of his

cardiac condition.”

5

Semler’s report appears to be paraphrasing a legal standard supplied to

him by the entity that had requested the report.

Cite as 360 Or 155 (2016) 163

Based on Semler’s report, SAIF denied the claim.

Claimant requested a hearing before the Hearings Division

of the Workers’ Compensation Board. Semler testified at

that hearing.6 Much of his testimony was devoted to pro-

viding background information regarding atherosclerosis

and heart attacks. Beyond that, his testimony reduced to

three propositions. First, Semler explained that atheroscle-

rosis starts as “a fatty deposit called a ‘fatty streak.’ ” The

appearance of a fatty streak indicates the existence of a dis-

ease process or an injury to the inner lining of the artery.

However, what causes the injury to the artery or the disease

process to begin is not known.7 Once the streak appears

plaque attaches to it and builds up over time. The plaque

can cause a heart attack either because it builds up to such

an extent that it obstructs the artery (as in claimant’s case)

or because a piece of the plaque breaks off and blocks the

artery that way.

Second, Semler testified that there are risk factors

that contribute to the development of atherosclerosis. They

include obesity, smoking, high blood pressure, high choles-

terol, diabetes, and family history. Claimant did not exhibit

any of those risk factors. Rather, Semler concluded in his

report that “[a]therosclerosis is more in keeping with the

aging process in [claimant’s] case.” As noted, claimant was

44 years old when he suffered a heart attack.

Third, Semler testified that he could not say, based

on the medical evidence, that firefighting caused atheroscle-

rosis. Alternatively, he testified that firefighting “did not

play any role in [claimant’s] development of atherosclerosis.”

He explained the basis for that opinion:

“I’ve never seen a paper that said firefighting caused ath-

erosclerosis. It’s not one of the things that doctors or cardi-

ologists would list. I just listed all of the potential causes;

6

Claimant’s treating cardiologist, Dr. Dawley, also testified at the hearing.

The board reasonably found that Dawley’s testimony was equivocal regarding the

cause of claimant’s atherosclerosis and thus insufficient to rebut the presump-

tion. Accordingly, we summarize only Semler’s testimony, which was the focus of

the Court of Appeals’ reasoning.

7

In addition to stating in his report that the exact etiology of atherosclerosis

is not definitely known, Semler agreed on cross-examination that “the cause of

laying down of the fatty streaks * * * [is] still unknown.”

164 SAIF v. Thompson

diabetes, obesity, hypertension, high cholesterol, family

history. But firefighting, I’ve never seen a paper that said

firefighting caused atherosclerosis.”

Given the foregoing reasoning, Semler agreed on direct

examination that claimant’s condition was “unrelated to his

employment as a firefighter.”

The Administrative Law Judge (ALJ) found that

SAIF had “presented sufficient evidence to overcome the

presumption by clear and convincing evidence” and upheld

SAIF’s denial of the claim. The board reversed. We quote

the board’s reasoning in full because the Court of Appeals

concluded that, in finding that SAIF had not met its burden

of persuasion, the board applied an incorrect legal standard.

The board reasoned:

“Dr. Semler was unaware of ‘any scientific evidence that

firefighting per se leads to atherosclerosis * * *.’ Dr. Semler

conceded that the ‘cause [of] atherosclerosis is still debat-

able,’ but asserted that the ‘current consensus’ related

atherosclerosis to ‘a multitude of factors[,] such as choles-

terol disorder, diabetes, smoking, hypertension, family his-

tory and other factors * * * [,] including being sedentary.’

Dr. Semler ultimately opined that claimant’s employment

as a firefighter played ‘no role whatsoever’ in his athero-

sclerosis and heart attack.

“We are not persuaded, however, that Dr. Semler’s opin-

ion satisfies SAIF’s ‘clear and convincing’ burden to over-

come the statutory presumption. Dr. Semler conceded that

the cause of atherosclerosis is unknown. Despite that con-

cession, Dr. Semler ruled out any contribution from claim-

ant’s employment as a firefighter. Dr. Semler did not per-

suasively explain, however, how he was able to make such

a categorical exclusion, given that the causes of that condi-

tion were unknown. The lack of such a persuasive explana-

tion is particularly significant, given that the record does

not establish that claimant had any identified ‘risk factors’

for atherosclerosis.

“In sum, after weighing the evidence, we find that SAIF

has not established, by clear and convincing medical evi-

dence, that the cause of claimant’s heart attack is unre-

lated to his employment.”

(Ellipses and brackets in original; citations omitted.)

Cite as 360 Or 155 (2016) 165

The Court of Appeals reversed. It recognized that

the board had stated that SAIF had failed to meet its burden

of persuasion. 267 Or App at 363. The court concluded, how-

ever, that the board implicitly had applied an incorrect legal

rule. The court reasoned that, “because [Semler’s] explana-

tion was not met with contrary evidence or criticized by the

board,” the board must have “viewed Semler’s opinion as

inadequate to overcome the presumption because it lacked

proof of the ultimate cause of claimant’s atherosclerosis.” Id.

at 364. That is, the Court of Appeals read the board’s order

as requiring proof of individual risk factors unrelated to the

claimant’s work, such as diabetes, tobacco use, or high cho-

lesterol, to rebut the presumption. That legal rule, the Court

of Appeals reasoned, was at odds with its decision in Long v.

Tualatin Valley Fire, 163 Or App 397, 987 P2d 1267 (1999).8

The court accordingly reversed the board’s order. Thompson,

267 Or App at 367.9

On review, the parties raise two related but sepa-

rate issues. Relying primarily on cases from other states,

claimant and his amici argue that SAIF may not rely on

medical evidence that, as a general matter, atherosclerosis

is unrelated to firefighting to rebut the firefighters’ pre-

sumption. They contend that SAIF may rebut the presump-

tion only with evidence that claimant’s atherosclerosis was

caused by individual risk factors unrelated to his work, such

as diabetes, high cholesterol, or obesity. Under that stan-

dard, claimant contends, we should affirm the board’s order.

Alternatively, claimant argues that, even if SAIF may rely

on testimony that atherosclerosis generally is unrelated to

8

In Long, three doctors had testified that the cause of the firefighter’s

heart condition was not known but that the condition was not related to his

work. 163 Or App at 399, 401. The board found that that evidence rebutted the

presumption, and the Court of Appeals upheld its order. Id. Because the board

upheld the employer’s denial, the only question before the court in Long was

whether the employer’s evidence was sufficient to meet the employer’s burden

of production. The Court of Appeals limited its holding to that question. See id.

at 401.

9

Ordinarily, if the board applied an incorrect legal standard, the appropri-

ate disposition would be to reverse the board’s order and remand the case to the

board to apply the correct standard. The Court of Appeals, however, concluded

that Semler’s unrebutted testimony necessarily established by clear and convinc-

ing evidence that claimant’s condition was unrelated to his work. See Thompson,

267 Or App at 367.

166 SAIF v. Thompson

firefighting, the board reasonably found that Semler’s testi-

mony did not meet SAIF’s burden of persuasion.

We read the board’s order differently from the Court

of Appeals. As we read its order, the board did not rule that

only evidence of individual risk factors unrelated to claim-

ant’s employment may be used to rebut the firefighters’ pre-

sumption. Rather, the board recognized that Semler’s tes-

timony was sufficient to meet SAIF’s burden of production;

however, it found that Semler’s testimony was internally

inconsistent and, for that reason, failed to meet SAIF’s bur-

den of persuasion. It follows that this case does not pres-

ent the first issue that claimant and his amici raise. It only

presents the second.10

In explaining why we read the board’s order differ-

ently from the Court of Appeals, we begin by identifying the

legal standard that the board applied. In its order, the board

started its analysis by explaining, “We are not persuaded

* * * that Dr. Semler’s opinion satisfies SAIF’s ‘clear and con-

vincing’ burden.” The board explained why it was not per-

suaded and then concluded by stating, “In sum, after weigh-

ing the evidence, we find that SAIF has not established, by

clear and convincing evidence, that the cause of claimant’s

heart attack is unrelated to his employment.”

Taking the board at its word, we find it difficult

to say that the board did anything other than what ORS

656.802(4) directed it to do once claimant established, by

means of the firefighters’ presumption, that his atheroscle-

rosis “result[ed]” from his employment as a firefighter: The

board asked whether SAIF had persuaded it by clear and

convincing medical evidence that claimant’s atherosclerosis

was “unrelated” to his employment. The board neither said

nor intimated that only evidence of individual risk factors

unrelated to claimant’s work could be considered in finding

whether SAIF had met its burden of persuasion.

10

Even though this case does not require us to reach the first issue that

claimant raises, we note that the answer to that issue turns primarily on the

text, context, and legislative history of ORS 656.802(4). That is, whether ORS

656.802(4) limits the type of medical evidence that employers may use to rebut

the presumed fact is first and foremost a question of legislative intent. Cf. State v.

Stockfleth/Lassen, 311 Or 40, 50, 804 P2d 471 (1991) (explaining when cases from

other jurisdictions will be context that bears on a statute’s meaning).

Cite as 360 Or 155 (2016) 167

The Court of Appeals, however, reasoned that,

given Semler’s unrebutted testimony, the board must have

rejected that testimony because Semler had not identified

any individual risk factor (hypertension, diabetes, etc.) as

the cause of claimant’s condition. In our view, the Court of

Appeals gave too much credit to Semler and too little credit

to the board. Put differently, the board reasonably could

(and did) find that Semler’s report and his testimony were

not persuasive, without resorting to the legal rule that the

Court of Appeals attributed to it.

In explaining why we reach that conclusion, we

begin with Semler’s report. As discussed above, Semler

issued a written report in which he opined that firefighting

was not the major contributing cause of claimant’s athero-

sclerosis. The primary difficulty with Semler’s report is that

he asked and answered the wrong question. Because claim-

ant proved the predicate facts necessary to establish the

firefighter’s presumption, ORS 656.802(4) presumed that

his atherosclerosis “resulted from” his employment and was

an occupational disease. The question accordingly was not

whether claimant’s employment was the major contribut-

ing cause of his condition; it was whether his condition was

“unrelated to [his] employment.” ORS 656.802(4). Those are

two separate questions. The fact that claimant’s employ-

ment was not the major contributing cause of his condition,

as Semler concluded in his report, does not mean that his

condition was unrelated to his employment.11 For that rea-

son alone, the board reasonably could have discounted the

persuasive value of Semler’s report.

The board also had Semler’s testimony before it. As

noted, that testimony reduced to three propositions. The first

proposition that Semler identified—that the causes of ath-

erosclerosis are unknown—provides no persuasive evidence

11

The same problem filtered through Semler’s testimony. Not only did Semler

repeat once in his testimony before the ALJ that the medical literature did not

establish that firefighting was the major contributing cause of atherosclerosis,

but even his more carefully articulated conclusions suffered from a similar logi-

cal flaw. The fact that, as Semler repeatedly stated, the medical literature did not

prove that firefighting causes atherosclerosis does not necessarily mean that it

proves that firefighting is “unrelated” to atherosclerosis. The former proposition

may give rise to a weak inference of the latter, but Semler repeatedly appeared to

equate the two.

168 SAIF v. Thompson

that claimant’s condition was unrelated to his employment,

or so the board could find. As this court explained in Wright,

a diagnosis that a “claimant’s condition is ‘idiopathic,’ or of

unknown origin” is “simply a confession of an inability to

identify a cause of [the] claimant’s impairments rather than

evidence that [the] claimant’s condition or impairment is

unrelated to his [or her] employment.” 289 Or at 332 (empha-

sis in original).

The second proposition that Semler identified is

equally unavailing. As noted, Semler explained that cardiol-

ogists had identified some risk factors that are related to the

development of atherosclerosis.12 Semler testified, however,

that claimant did not exhibit those risk factors, which sim-

ply ruled out the possibility that those risk factors (rather

than claimant’s work) were the cause of his atherosclerosis.

The board reasonably could find that the second proposition

that Semler identified provided no persuasive evidence that

claimant’s condition was unrelated to his work. Contrary

to the Court of Appeals’ reasoning, we do not understand

the board, in ruling out those factors, to have held that only

those factors could be used to rebut the presumption that

claimant’s atherosclerosis resulted from his work.

Finally, Semler opined that atherosclerosis is unre-

lated to firefighting. In large part, Semler based that opinion

on the fact that he could not find in the medical literature a

proven connection between firefighting and atherosclerosis.

Even if we assume that Semler’s opinion was sufficient to

meet SAIF’s burden of production, the board was not per-

suaded by his opinion. As the board explained, Semler also

testified that the causes of atherosclerosis are not known.

The board reasoned that, if cardiologists cannot identify the

causes of atherosclerosis, as Semler testified, and if claim-

ant had no apparent risk factors that were unrelated to his

work, as Semler also testified, then the basis for Semler’s

opinion that claimant’s atherosclerosis was unrelated to his

work was not apparent and, for that reason, was not suffi-

ciently persuasive to meet SAIF’s burden of persuasion.

12

Sometimes, Semler referred to the factors as risk factors. Other times, he

referred to them as causes of atherosclerosis. Given his testimony that the etiol-

ogy of atherosclerosis is unknown, we refer to them as risk factors.

Cite as 360 Or 155 (2016) 169

As we read the board’s opinion, the board evaluated

the persuasive value of Semler’s opinion and found it lack-

ing. As the board explained, Semler’s opinion that athero-

sclerosis is unrelated to firefighting was at odds with his

testimony that the causes of atherosclerosis are unknown.

The latter testimony undercut the former, or so the board

reasonably could find. As a result, the board permissibly

concluded that SAIF had not met its burden of persuasion

by clear and convincing evidence. Contrary to the Court of

Appeals conclusion, we do not understand the board to have

sub silentio faulted SAIF for failing to prove that claimant’s

atherosclerosis was caused by individual risk factors (such

as diabetes, high blood pressure, and the like) unrelated to

his work.

SAIF, however, argues on review that Semler offered

a cogent and clear opinion, which “was legally sufficient to

rebut the presumption.” We assume that Semler’s opinion

met SAIF’s burden of production. However, we cannot say

that the board was required to conclude that Semler’s opin-

ion met SAIF’s burden of persuasion. There is a difference

between saying that there is sufficient evidence to permit

the board to find that SAIF met its burden of persuasion

and saying that the board was required to make that find-

ing. To put the point in a familiar context, there is a differ-

ence between saying that a party has put on sufficient evi-

dence to submit a claim to the jury and directing a verdict in

a party’s favor on that claim. In this case, even if we assume

that Semler’s testimony was sufficient to meet SAIF’s bur-

den of production, the board reasonably could find, for the

reasons the board stated, that Semler’s testimony did not

meet SAIF’s burden of persuasion.13 The Court of Appeals

erred in concluding otherwise.

The decision of the Court of Appeals is reversed.

The order of the Workers’ Compensation Board is affirmed.

13

It follows that we need not decide the first issue that claimant raises—

whether SAIF may rebut the firefighters’ presumption only with medical evidence

of individual risk factors unrelated to work—to resolve this case. We express no

opinion on that issue.