dissenting.
There are times when enforcing a pre-existing rule of law creates, or at least can appear to create, an injustice, but the rule must nonetheless be enforced. The majority treats this as such a case. The majority is wrong. There is no preexisting rule here.
The majority holds — and I agree — that Hallmark is the responsible employer under the last injurious exposure rule, See Boise Cascade Corp. v. Starbuck, 296 Or 238, 241, 675 P2d 1044 (1984), unless it is relieved of its responsibility by virtue of its estoppel claim. I also agree with the majority that the Court of Appeals has not given a clear statement as to the *40facts it has found that bear on the estoppel question. See Stovall v. Sally Salmon Seafood, 84 Or App 612, 615, 735 P2d 18 (1987), discussed by the majority at 306 Or 33. That is regrettable, because a clear finding against Hallmark on the facts would obviate any need for a discussion by the majority, or by me, of the estoppel issue. But it must be discussed.
The majority’s discussion is at 306 Or 37-39. It purports to be “an attempt to discern public policy as expressed by the legislature [on the question of whether estoppel is available to parties in Hallmark’s position].” 306 Or at 37.
There is no statute directly relating to this issue. The majority purports to find some meaning in the Workers’ Compensation Law’s prohibition of waivers. ORS 656.236(1); 656.804. 306 Or at 37-38. The majority does not explain just what the analogy is or means, however. For myself, I do not find any analogy at all between forbidding waivers of coverage by employes, on the one hand, and forbidding a potential employe from obtaining employment (and, subsequently, compensation) by fraud, on the other hand. The legislature simply has not spoken to this question, either directly or by implication.
The majority appears to recognize the same thing, because it concludes its case by relying on the old saw that the workers’ compensation scheme is to be “construed liberally in favor of the worker-claimant.” 306 Or at 38-39, citing Fossum v. SAIF, 289 Or 787, 792-93, 619 P2d 233 (1980). This approach works, if at all, only until one backs away a short distance and looks at the resulting proposition. Everyone accepts that the ultimate question is one of legislative intent. The majority announces that it was the legislature’s intent, in setting up the workers’ compensation system, to permit a worker who knows she is physically at risk if she takes a certain job and who knows her prospective employer doesn’t want to hire her if she is at risk to lie, get the job, get hurt, and charge the employer for her medical expenses, time loss and degree of permanent impairment, if any. And all this in spite of the fact that (it is assumed) the employer has taken every reasonable step to avoid claimant’s injury by establishing a bona fide condition on hiring and, in all likelihood, has based its workers’ compensation insurance plan on the assumption that the condition will be efficacious.
*41I would hold that one who intentionally conceals a physical condition in response to a valid inquiry by a prospective employer, who would not have been hired for the particular job she was given had she answered truthfully, and who is hired and thereafter is disabled or requires medical services for the concealed condition, is ineligible for workers’ compensation benefits. Accord, 1C Larson, Workman’s Compensation Law, § 47.00, 8-284 (1986). See Bauman v. SAIF, 295 Or 788, 670 P2d 1027 (1983). I would, of course, require the employer or insurance carrier to establish all of the foregoing elements before compensation could be denied.
It is one thing to say that the workers’ compensation scheme does not concern itself with fault once a worker is in the system — the trade-off of rights and duties encompassed in the scheme is clear. But this is a case of fraudulently entering the system. The legislature has not said it intended to protect or excuse such frauds. The majority is working this unjust result entirely on its own. We do not have to do so.1
I dissent.
Peterson, C. J., and Carson, J., join in this dissent.What should be done is to remand the case to the Court of Appeals to make clear findings on the crucial factual issue. If Hallmark has made its case for estoppel, it should prevail.