The opinion
NEWMAN, J.,
specially concurring.
I believe that EBI’s backup denial was proper. The majority states that claimant’s failure to disclose a prior injury to the same body part was not a material misrepresentation. The majority reasons that, because EBI knew of one prior injury, it would have necessarily accepted the claim had it known of two. Because the misrepresentation did not change EBI’s decision, the reasoning continues, it was not material. I disagree. Claimant’s nondisclosure concerned the same body part involved in the claim. Moreover, the medical evidence indicates that her 1977 injury was a significant factor in her subsequent disabilities, including the disability involved in the 1982 claim against Ebbtide. Under these circumstances, I would hold that claimant’s failure to disclose her 1977 injury to EBI was material and a misrepresentation within the meaning of Bauman v. SAIF, 295 Or 788, 794 , 670 P2d 1027 (1983). See Parker v. North Pacific Ins. Co., 73 Or App 790, 794 , 700 P2d 255 (1985); Skinner v. SAIF, 66 OR App 467, 470, 674 P2d 72 (1984).
The majority’s approach to the materiality issue is based on speculation. I can see little advantage to encouraging such speculation by requiring the insurer to prove that it would have acted differently if it had known of facts that claimant did not disclose, when the record shows that the non-disclosed injury was to the same body part as was involved in the accepted injury and materially contributed to it. Any increase in “fairness” that such a rule might promote would be outweighed by the increase in uncertainty that it would create, particularly because the insurer is only seeking an opportunity to litigate the claim. I would hold that claimant’s misrepresentation is material and would reverse the Board on this issue.
As the majority notes, the referee found that claimant’s work for Ebbtide did not in any way contribute to her subsequent injury. 81 Or App 111 . Even if the back-up denial is allowed under Bauman , EBI may still be responsible for the aggravation claim if the evidence shows that the denial should not be affirmed. The majority concludes that the parties should have the benefit of the Board’s evaluation, not yet made, of the evidence on this point and remands for further *114 proceedings on the aggravation claim. Because that disposition is reasonable under the circumstances, I concur.