dissenting.
The question presented here is whether the last injurious exposure rule applies in circumstances where one of two work exposures that contributed to claimant’s current condition occurred while claimant was working out of state for a non-Oregon employer. The majority reverses the Board and holds that the rule applies in these circumstances. I believe that the Board result was right and, accordingly, I dissent.
The Board concluded that under ORS 656.023, during the time of claimant’s work in California, employer was not a “subject employer” and that, consequently, claimant was not a “subject worker.” Because of that, it concluded that Oregon’s workers’ compensation law was not applicable and that any injuries suffered during claimant’s employment in California are not compensable under Oregon law. Accordingly, the Board concluded that claimant must prove, under ORS 656.802, that his Oregon employment was the major contributing cause of his present condition or its worsening.
The majority does not appear to believe, as did the Board, that the statutes resolve this question. Rather, the majority turns immediately to our case law and concludes that because we have multiple employments here, we must apply the last injurious exposure rule to decide this matter. I agree with the majority that the statutes do not resolve this question. It appears from the text and context of the workers’ compensation law that the legislature has not directly considered this issue. However, I do not agree with the majority that our case law has resolved this issue. The majority first relies on our decision in Bennett v. Liberty Northwest Ins. Corp., 128 Or App 71, 875 P2d 1176 (1994). That case, however, is inapposite, because all of the employers involved were Oregon employers.
The majority also relies strongly on our decision in Progress Quarries v. Vaandering, 80 Or App 160, 722 *303-bP2d 19 (1986). As the majority correctly recites, in Progress Quarries, the claimant filed a claim for hearing loss and tinnitus against several Oregon employers. All of the employers that were parties to the case agreed that the claimant’s injuries were compensable. However, responsibility was contested. The claimant’s last employment before the “date of disability,” for purposes of the last injurious exposure rule, was with an out-of-state employer. One of the Oregon employers argued that the out-of-state employer was responsible under the last injurious exposure rule. We rejected that argument and concluded that the out-of-state employment should not be considered in assigning responsibility under the last injurious exposure rule.
Although recognizing that Progress Quarries involved a different issue,1 the majority reads our decision in that case as supporting its conclusion that out-of-state employment may be considered in deciding on the applicability of the last injurious exposure rule. In my view, our decision in Progress Quarries does not support that conclusion. In fact, the rationale of our decision in Progress Quarries supports the opposite conclusion—that out-of-state employment may not be considered in determining if compensability should he determined based on the last injurious exposure rule.
In our decision in Progress Quarries v. Vaandering, supra, we noted the rationale supporting the application of the last injurious exposure rule, as explained by the Supreme Court in Bracke v. Baza’r, 293 Or 239, 646 P2d 1330 (1982). In Bracke, the court explained that the purpose of the last injurious exposure rule is to relieve a claimant from having to prove causation in cases of successive incremental injuries or disease and in cases where employment at more than one successive employer could have caused a disease. The reason that it is important to *303-crelieve a claimant of this burden is that it is often difficult in such cases for a claimant to prove that the injury or disease was caused by a particular employer. The court in Bracke recognized that, under the rule, liability may end v. being imposed on an employer that was not primarily responsible for a claimant’s injury. However, the court reasoned that the use of the rule is not unfair to employers, because liability is spread proportionately among them. As the Supreme Court explained:
“By arbitrarily assigning liability to the last employment which could have caused the disease, the rule satisfies claimant’s burden of proof of actual causation. The reason for the rules lies not in their achievement of individualized justice, but rather in their utility in spreading liability fairly among employers by the law of averages and in reducing litigation.” Bracke v. Baza’r, supra, 293 Or at 248.
After our discussion of Bracke in Progress Quarries, supra, we concluded that the rationale supporting the use of the rule does not exist when an out-of-state employment is considered:
“As the Supreme Court noted in Bracke v. Baza’r, 293 Or 239, 646 P2d 1330 (1982), the rule, which is for claimants’ benefit, can operate fairly for employers if applied consistently. The basic overall fairness can be achieved only if application of the rule remains under control of the Oregon workers’ compensation system. If out-of-state employment is considered, the systematic application of the rule breaks down. By reason of the analysis required under the last injurious exposure rule, only if the Oregon employment environment is injurious and a potential cause of the disease can the claimant be entitled to compensation under the rule of proof aspect of the doctrine. An individual employer escapes liability because Oregon has no apportionment provision and because of a policy to award compensation for occupational disability despite a lack of precision in the proof.” 80 Or App at 166. (Emphasis supplied.)
A similar analysis applies here. The last injurious exposure rule makes sense and achieves overall fairness so long as we are dealing with employers over which the *303-dOregon workers’ compensation system has control. However, if we allow out-of-state employment to be considered in the application of the rule, the rule breaks down, because we have no control over if and when an out-of-state employer will be responsible for workers under similar circumstances. When an out-of-state employer is involved, there is no guarantee of any consistency in. the application of the rule. Further, unlike if we were dealing with two Oregon employers, a holding that the Oregon employer here is responsible does not preclude claimant from seeking recovery for the same injury from the out-of-state employer and, accordingly, receiving a double recovery. The last injurious exposure rule simply does not work when out-of-state employment is involved.
Although our statements in Progress Quarries were made in the context of the application of the responsibility aspect of the last injurious exposure rule, rather than as here, in the context of the rule as a rule of proof, that difference should not matter. The rationale underlying the last injurious exposure rule as a rule of proof and as a rule of liability assignment are the same; i.e., a claimant is relieved from a difficult burden of proof. The trade-off for employers is that liability will be spread evenly among employers by the law of averages. Our comments in Progress Quarries that the last injurious exposure rule does not work well when out-of-state employers are involved, because the trade-off for employers is not there, is equally true whether we are considering the rule as a rule of proof or a rule of assigning liability. In both instances, we have no control as to if, and to what extent, an out-of-state employer will be found responsible and, consequently, no control over whether liability will be spread evenly among employers.
My understanding of the application of the last injurious exposure rule does not necessarily mean that an injured claimant will not recover. If a claimant can show that the Oregon employment was the major contributing cause of a claimant’s condition, a claimant may recover in Oregon. Further, as mentioned above, nothing prevents a claimant from seeking recovery against an out-of-state *303-eemployer. In this case, for instance, although claimant’s employer discouraged him from seeking workers’ compensation in California, claimant could have filed a claim in California and perhaps still can. Obviously, if an injured claimant is left without any recourse, that may be a very undesirable result. However, it is equally unfair to Oregon employers to be held responsible for an injury that was caused by employment in another state. Applying the last injurious exposure rule to initial claims for compensation involving out-of-state employment would allow workers with serious work-related injuries caused by employment in other states to come to Oregon and, by simply showing that the Oregon employment could have contributed to the condition, hold the Oregon employer responsible. That is not a result that the last injurious exposure rule was ever designed or intended to achieve. If the rule is to be so extended, that is a policy decision that the legislature ought to make.2
I believe that the Board correctly decided that the last injurious exposure rule does not apply here, because we have only one Oregon employment to consider. Accordingly, in my view, the Board properly required claimant to establish under ORS 656.802 that claimant’s Oregon work exposure was the major contributing cause of his disease. I would also hold that there is substantial evidence to support the Board’s conclusion that claimant did not prove that his Oregon employment was the major *303-fcontributing cause of his occupational disease. For all of the above reasons, I respectfully dissent.
The majority is correct that the issue in Progress Quarries was somewhat different from the one presented here, because the employer in that case was trying to use the last injurious exposure rule defensively to place responsibility on a subsequent out-of-state employer. Here, the question is whether exposure during a prior out-of-state employment should be considered in determining if compensability should be determined based on the last injurious exposure rule.
The dissent to the Board’s opinion suggests an alternative resolution to this problem:
“The alternate potential resolution is to adopt a rule similar to Miville [v. SAIF, 76 Or App 603, 710 P2d 159 (1985)] to apply to prior potentially causal out-of-state employment exposures. Under such a rule, claimant would be required to file his claim with any prior out-of-state employer who could have contributed to the condition prior to litigating the claim in Oregon. If benefits are provided under the out-of-state claim, then, and only then, would claimant be required to show an actual contribution to a worsened condition as required by preexisting conditions under Weller v. Union Carbide, 288 Or 27[, 602 P2d 259] (1979). If the claim for benefits in the out-of-state exposure was not allowed!,] claimant’s demonstration that his condition was caused by his employment would be sufficient to assign liability to the last potentially causal Oregon employer on the risk.”
That may well be a sensible solution to this problem, but it is a choice that the legislature ought to make.