Fisher v. SAIF

No. 131             February 20, 2025                   155

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON
           In the Matter of the Compensation of
                 Ryan J. Fisher, Claimant.
                    Ryan J. FISHER,
                         Petitioner,
                              v.
                  SAIF CORPORATION
                and Hudson Bay Insulation,
                       Respondents.
               Workers’ Compensation Board
                         2202596;
                         A182553

  Argued and submitted December 20, 2024.
   Jodie Anne Phillips Polich argued the cause and filed the
briefs for petitioner.
   Daniel Walker argued the cause and filed the brief for
respondents.
  Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
  HELLMAN, J.
  Affirmed.
156                                                         Fisher v. SAIF

         HELLMAN, J.
         Claimant seeks judicial review of a Workers’
Compensation Board (board) order on review affirming an
administrative law judge (ALJ) order. Claimant raises two
assignments of error. For the following reasons, we affirm.
         “We review an agency’s order in a contested case for
errors of law, ORS 183.482(8)(a), substantial evidence, ORS
183.482(8)(c), and substantial reason[.]” Dorn v. Teacher
Standards and Practices Comm., 

, 

 (2021). “Substantial evidence exists to support a finding of fact when the record, viewed as a whole, would permit
a reasonable person to make that finding.” ORS 183.482(8)
(c). “Substantial reason exists where the agency has articulated a rational connection between the facts and the legal
conclusion that the agency draws from them.” Dorn, 

 (internal quotation marks omitted).
         Combined condition. In his first assignment of
error, claimant argues that the board “erred in finding that
claimant conceded that their claim was properly analyzed
under ORS 656.802(2)(a) and that this was not a ‘combined
condition’ under ORS 656.802(2)(b) declining to address
claimant’s ‘combined condition’ argument on review.”1 We
disagree with claimant’s argument.
          In the order on review, the board explained:
       “At the hearing level, claimant conceded that the claim
   was properly analyzed under ORS 656.802(2)(a) and that
   this was not a ‘combined condition’ under ORS 656.802(2)
   (b). Therefore, we decline to address claimant’s ‘combined
   condition’ argument on review.”
(Record reference omitted.)
        We have reviewed the record and conclude that
substantial evidence supports the board’s finding. During
claimant’s closing argument, claimant stated:
   1
     ORS 656.802 provides, in relevant part:
       “(2)(a) The worker must prove that employment conditions were the
   major contributing cause of the disease.
       “(b) If the occupational disease claim is based on the worsening of a preexisting disease or condition pursuant to ORS 656.005(7), the worker must
   prove that employment conditions were the major contributing cause of the
   combined condition and pathological worsening of the disease.”
Nonprecedential Memo Op: 

 (2025)                  157

   “So, your honor, that essentially, is my argument indicating
   why that this is indeed a—that the noise induced hearing
   loss is indeed work related. This is a combined condition
   and the major cause or primary cause of the work condition of the—noise induced hearing loss is the employment
   condition. And I would assert that [claimant] has met his
   burden of proof.”
However, after the insurer gave its closing argument, claimant stated:
   “As [the insurer] pointed out, this is not a[n] 802(b) case or
   an 802(2)(b) case. This is an A case. What makes this—
   because I’m not trying to establish on [claimant’s] behalf
   that he had a worsening of his presbycusis, which in this
   case, [claimant’s examining doctor] defines as being a separate condition from his high frequency hearing loss.”
          Because the record, when viewed as a whole, permits a reasonable person to find that claimant conceded
that he was not bringing a claim under ORS 656.802(2)(b),
substantial evidence supports the board’s finding. See Elsea
v. Liberty Mutual Ins., 

, 

(2016) (“If the board’s finding is reasonable in the light of
countervailing as well as supporting evidence, then the finding is supported by substantial evidence.”); Gaylord v. DMV,

, 

 (2017) (“When in a review
role, a court does not review for the better evidence.”).
         Major contributing cause. In his second assignment
of error, claimant contends that the board “erred in finding
that [the examining doctor’s] opinion did not persuasively
establish that work-related noise exposure was the major contributing cause of his hearing loss and tinnitus conditions.”
           Here, the board reasoned:
      “We do not adopt the ALJ’s reasoning that [claimant’s
   examining doctor’s] assessment and consideration of an
   ‘unknown’ cause as a contributing factor rendered his opinion unpersuasive. … Regardless, for the other reasons
   expressed in the ALJ’s order, the opinion of [the examining doctor], on which claimant relies, does not persuasively
   establish that work-related noise exposure was the major
   contributing cause of his hearing loss condition. See ORS
   656.802(2)(a).”
158                                                Fisher v. SAIF

         We have reviewed the record and conclude that substantial evidence supports the board’s finding. The record
indicates that the examining doctor agreed with the following statement:
       “It was your opinion that [claimant’s] lifelong work
   activities were not the major contributing cause of his
   bilateral hearing loss condition. You based your opinion on
   your reading of the audiogram done as part of your exam
   in this case. An audiogram is used to measure hearing
   loss. [Claimant’s] audiogram was not consistent with his
   hearing loss condition being caused in major part by his
   lifelong work activities. In [claimant’s] case all frequencies
   were affected on his audiogram, which was not consistent
   with claimant’s work activities being the major contributing cause of his hearing loss condition.”
The examining doctor also agreed that he “attributed 35%
of [claimant’s] hearing loss to something called presbycusis. Presbycusis is age related hearing loss” and that he
“attributed 25% of [claimant’s] hearing loss to non-work-related causes.” Those causes “include avocational noise exposure from the use of firearms as well as idiopathic factors.”
        Because the foregoing evidence would permit a reasonable person to find that the examining doctor’s opinion
“[did] not persuasively establish that work-related noise
exposure was the major contributing cause of his hearing
loss condition,” we conclude that the substantial evidence
supports the order on review. See Gaylord, 

 (“Review for substantial evidence is review to determine
whether a reasonable person could have made the findings
supporting the decision, not whether a reasonable person
could have made different findings.” (Internal quotation
marks omitted.)).
         Affirmed.