Liberty Metal Fabricators v. Lynch Co.

“‘Reasonable medical probability’ describes the level of proof required to establish medical causation by a preponderance of the evidence. Robinson v. SAIF, 147 Or App 157, 160, 935 P2d 454 (1996).

Employer Liberty Metal Fabricators (“Employer Liberty”) appealed from an order by the Worker’s Compensation Board (the “Board”) who held Employer Liberty responsible for a claimant’s hearing loss under the “last injurious exposure” rule. Employer Liberty assigned error to the Board’s misapplication of the “Roseburg Forest Products” test. On appeal, Employer Liberty argued the Board’s conclusory phrase, “to a reasonable degree of medical probability,” did not establish that it was “impossible” for claimant’s injuries to have been sustained at a latter place of employment. In response, the Board argued that case law does not require “impossibility” to determine which employer is responsible for a claimant’s injuries. Additionally, the Board argued that although the medical expert stated the latter employer could be responsible for a decimal change in claimant’s hearing, that change alone was not enough to have caused the actual injuries claimant sustained. “The standard of proof in this case is a “preponderance of the evidence.” See Blank v. US Bank of Oregon, 252 Or App 553, 557, 287 P3d 1272 (2012). “‘Reasonable medical probability’ describes the level of proof required to establish medical causation by a preponderance of the evidence. Robinson v. SAIF, 147 Or App 157, 160, 935 P2d 454 (1996). The Court concluded that the Board did not err in holding Employer Liberty responsible for claimant’s injury because, although there could be evidence to establish who “literally” was responsible for claimant’s injury, the only evidence presented by the medical examiner established that Employer Liberty was more than likely responsible, not the latter employer.

Affirmed.