The opinion
JOSEPH, C. J.,
dissenting.
I dissent, because the majority is confused about the issues and, ultimately, applies an incorrect rule of decision.
It is critical to note certain things about this case that are either misunderstood or overlooked by the majority:
1. UAC disputes the Board’s finding that claimant has an occupational disease.
2. UAC disputes its responsibility for claimant’s current condition, as between it and SAIF (and other insurers that have been employers’ carriers).
3. Only one employer is involved.
4. Whatever else UAC and SAIF dispute, they agree that the Board’s order is incomplete, unclear and, possibly, contrary to law, insofar as it seems to hold SAIF responsible in some mysterious way for the initial stages of claimant’s occupational disease but still holds UAC ultimately responsible.
*605 I agree with the majority that there is substantial evidence to support the Board’s conclusion that claimant has an occupational disease. However, given that there is only one employer involved, the majority is wrong in applying the last injurious exposure rule to this case. As the Supreme Court has recently said in Garcia v. Boise Cascade Corp., 309 Or 292 , 787 P2d 884 (1990):
“Finally, claimant has argued before the Board, the Court of Appeals, and this court, for application of the last injurious exposure rule. That rule might render employer, as claimant’s last employer, liable for claimant’s degenerative back condition if claimant established that the condition was caused by [sic] one of two or more places of employment. See Stovall v. Sally Salmon Seafood, 306 Or 25, 31 , 757 P2d 410 (1988); Boise Cascade Corp. v. Starbuck, 296 Or 238 , 675 P2d 1044 (1984); Bracke v. Baza’r, 293 Or 239 , 646 P2d 1330 (1982).” 309 Or at 296 .
Stovall and Starbuck together put to rest the misunderstanding dragged into the law by Inkley v. Forest Fiber Products Co., 288 Or 337 , 605 P2d 1175 (1980), that the last injurious exposure rule has anything to do with the allocation of liability between successive insurers. It has only to do with the liability between different employers. In the single employer case, the allocation rule should be simple: The carrier on the risk when the disease becomes disabling is responsible.
I cannot tell from the Board’s order whether it actually applied the last injurious exposure rule, although the words it used indicate that it did. However, that is only one part of a very confusing order. That confusion has contributed to some of the confusion in the briefing in this case and, apparently, to the confusion in the majority opinion. I believe that we should say simply that the Board’s reasoning (without saying that we fully understand it) does not lead to its result and remand the matter to the Board for reconsideration.
In fairness to the majority, I must acknowledge that its analysis of UAC’s third assignment of error relating to SAIF’s responsibility for claimant’s condition pretty well tracks in its confusion the confusion of the Board. If UAC was on the risk when claimant’s occupational disease became disabling, then UAC is responsible. The trouble is that SAIF had earlier accepted responsibility for claimant’s bad knees. The *606 Board made a mishmash out of the allocation of responsibility. We cannot possibly straighten it out on this substantial evidence review. We can and should remand the matter to the Board.