SAIF Corp. v. Danboise

LANDAU, J.,

dissenting.

The Board began its description of the applicable standard by stating that claimant “has the burden of establishing that his cervical impairment is due to his compensable injury.” That is a correct statement of the law. ORS 656.214(5). The Board then qualified that correct statement of the law with the following sentence:

*554“Claimant may, however, meet that burden by presenting a treating physician’s or medical arbiter’s report that: (1) contains impairment findings that are consistent with [his] compensable injury; and (2) does not attribute those findings to causes other than the compensable injury.”

(Emphasis supplied.) In my view, two things are clear from the foregoing sentence.

First, it is intended as a qualification of the statement of the legal standard that preceded it. I know no other meaning of the clause “[c]laimant may, however, meet that burden” than that the Board intended what followed to qualify the immediately preceding sentence. See, e.g., Webster’s Third New International Dictionary 1097 (1976) (defining “however” as “in spite of that: on the other hand: BUT”); New Shorter Oxford English Dictionary 1272 (1993) (“however” means “for all that, nevertheless, notwithstanding; but”); Theodore Bernstein, The Careful Writer 218 (1978) (“however * * * throws contrasting emphasis on what precedes it”).

Second, the qualification that followed is not a correct statement of the law. ORS 656.214(5) provides that claimant bears the burden of proving a causal link between the job injury and the medical impairment. Senters v. SAIF, 91 Or App 704, 707, 756 P2d 693 (1988); Paige v. SAIF, 75 Or App 160, 163, 706 P2d 575 (1985). The Board states that claimant can satisfy his burden by establishing something less than causation; claimant may prevail merely by offering evidence that is “consistent with” his claim when there is no evidence to the contrary. In my view, that is wrong. Evidence of consistency simply does not, by itself, prove causation. That is true as a matter of common sense. Evidence that washing one’s car invariably is followed by a rainy day does not establish that the washing produces the rain, even in the absence of evidence of alternate causes. The same is true as a matter of law. See, e.g., Bronco Cleaners v. Velazquez, 141 Or App 295, 299, 917 P2d 539 (1996) (a claimant cannot rely solely on temporal correlation of exposure and symptoms to satisfy causation requirement).

It may well be that the Board can determine from the evidence in the record of this case that claimant, in fact, has satisfied his statutory burden. That is a matter for the *555Board to determine by the application of the correct legal standard. See, e.g., Liberty Northwest Ins. Corp. v. Golden, 116 Or App 64, 69, 840 P2d 1362 (1992), rev den 315 Or 442 (1993) (“[b]ecause the Board used the wrong legal standard, we remand for reconsideration”). In the opinion before us, the Board did not apply the correct legal standard, and therefore, I respectfully dissent from the majority’s decision to affirm.

Warren and Leeson, JJ., join in this dissenting opinion.