IN RE: the Compensation of Steve E. Houston (2003)

In this workers' compensation case, petitioner Les Schwab Warehouse Center (Les Schwab) argues that the board erroneously applied the last injurious exposure rule to find Les Schwab responsible for claimant's shoulder condition.   We agree and reverse and remand.

Claimant first sought medical treatment while working for his first employer, Agness Enterprises, so it is assigned initial responsibility for the claim.   Timm v. Maley, 125 Or.App. 396, 401, 865 P.2d 1315 (1993), rev. den., 319 Or. 81, 876 P.2d 783 (1994).   In order to shift responsibility forward to claimant's second employer, Les Schwab, Agness Enterprises must establish that claimant's employment at Les Schwab actually contributed to a worsening of claimant's condition.  Reynolds Metals v. Rogers, 157 Or.App. 147, 153, 967 P.2d 1251 (1998), rev. den., 328 Or. 365, 987 P.2d 510 (1999).

In this case, it is not possible to determine if the board applied the correct legal standard to determine whether Les Schwab is responsible for claimant's condition.   The board, citing to Liberty Northwest Ins. Corp. v. Kaleta, 173 Or.App. 82, 87, 20 P.3d 256 (2001), parenthetically described the test as “pathological worsening is not taken into account when determining whether responsibility should shift under the last injurious exposure rule.”  (Internal quotation marks omitted;  emphasis in original.)  Kaleta concerned the employer's attempt to shift responsibility backward to a previous employer.   This case concerns shifting responsibility forward to a later employer.

We remand this case to the board to consider this case under the appropriate legal standard, as prescribed by Reynolds Metals.   See Richey v. Barrett Business Services, 173 Or.App. 29, 32, 20 P.3d 260 (2001) (where the board applied the wrong legal standard, the proper result is a remand to the board to apply the correct legal standard).

Reversed and remanded.

 WOLLHEIM, J.