dissenting.
The Workers’ Compensation Board found that claimant’s employment with Siltec, his last employer, was not the major contributing cause of his hearing disability or any worsening of it. Consequently, it held that claimant had failed to establish the compensability of his condition as to Siltec.1 The majority reverses, holding:
“Accordingly, claimant must show that employment conditions, which may include conditions to which he was exposed at Caterpillar, were the major contributing cause of his hearing loss. If he does that, he may rely on the last injurious exposure rule to prove the compensability of the claim against Siltec by showing that employment conditions there could have caused the condition.” 128 Or App at 78.
Claimant worked for Caterpillar and its predecessor from 1964 to 1989. He suffered a significant loss of hearing during that period of time. He began to work for Siltec in January, 1990, and filed his claims against Caterpillar and Siltec in October of that year. One expert testified that the audiology reports indicated that “there was almost no decrease in [claimant’s] hearing acuity while he worked [for Siltec], and that the major extent of his hearing loss occurred while he was at [Caterpillar].” He said that “maybe 5 percent’ ’ of the loss could be attributed to Siltec. Another witness opined that if claimant had worn his ear plugs while working at Siltec as he had told the witness he had, the change in claimant’s hearing after he began work at Siltec was not likely to have been caused by exposure to noise at Siltec, but could have been caused by the aging process. Both employers denied the claims. Claimant requested a hearing on both denials. Before the hearing, he entered into a disputed claims settlement with Caterpillar. The majority reverses the Board and holds that the last injurious exposure rule is applicable. I disagree.
*80The “last injurious exposure” rule is both a rule of proof and a rule of responsibility. It reheves a claimant of proving that exposure at a particular employer’s work place caused the disease, because the claimant is required to prove only that the disease was caused by an employment-related exposure. It also assigns responsibility to the last employer at which claimant could have been exposed to the disease-causing substances. Runft v. SAIF, 303 Or 493, 500, 739 P2d 12 (1987). The purpose underlying both parts of the rule is to provide claimant a remedy when it is demonstrable that the condition is work-related, but the trier of fact is unconvinced that any one employment is the likeliest cause of the disease. Boise Cascade Corp. v. Starbuck, 296 Or 238, 245, 675 P2d 1044 (1984).
In Bracke v. Baza’r, 293 Or 239, 646 P2d 1330 (1982), the court held that liability was properly assigned to the claimant’s previous employer when the onset of the disease occurred at that employment and the subsequent employment did not contribute to the disease. It held that under the circumstances, the last injurious exposure rule was not applicable. It said: “There is no reason to apply the rule with any greater arbitrariness than is required to achieve its purposes * * 293 Or at 250 n 5. Here, as in Bracke v. Baza’r, supra, the finder of fact did not believe that the subsequent employment worsened claimant’s hearing disability.
Moreover, although he was aware that one expert attributed at least 95% of his hearing loss to his employment at Caterpillar and the other did not believe his disability was caused by his employment at Siltec, claimant chose not to pursue his claim against Caterpillar in lieu of a settlement for $7,500. By the settlement, claimant attributed a portion of his hearing loss to his 25-year period of employment with Caterpillar. When it is uncontroverted that the disability is caused by an exposure occurring during an earlier employment, there is no reason to apply the last injurious exposure rule even if the work exposure at the later employment could have contributed to the disability. See Boise Cascade Corp. v. Starbuck, supra, 296 Or at 243. The rule “is not intended to transfer liability from an employer whose employment caused a disability to a later employer whose employment did *81not.” 296 Or at 244. Because the issues of compensability and responsibility are resolved as to Caterpillar, there is no policy reason to relieve claimant of the burden of demonstrating that the actual causation of his hearing loss was his employment at Siltec.
Our decision in Garcia v. Boise Cascade Corp., 103 Or App 508, 798 P2d 265 (1990), was based on a similar analysis. In that case, the claimant had osteoarthritis in his lower back, a degenerative condition that was manifested after 1980. He had worked for the employer from 1963 to 1980, when he was laid off. He then worked for several employers until he was rehired by the employer in February, 1983. He was injured in 1985. The employer accepted the claimant’s claim for injury except for the degenerative changes in his back, which it denied. On hearing, the Board held that the claimant had failed to prove that “the work activities for the employer were the major contributing cause” of his condition. The claimant argued that the last employer should be found liable under the last injurious exposure rule. Judge Warren, writing for this court, said that the last injurious exposure rule had no application when the claim was brought against one employer only, because by doingso, “claimant elected to prove actual causation.” 103 Or App at 511. That reasoning is no less applicable here.
In summary, I would hold claimant to the legal effect of his settlement with Caterpillar. When he entered into a disputed claim settlement agreement, the need for the application of the last injurious exposure rule disappeared because the remaining claim is against only one employer. The threshold issue is whether claimant’s condition was caused solely by the work activities at Siltec. The Board was right when it reasoned that the result in this case is controlled by our holding in Garcia. By his settlement, claimant has elected to proceed against only Siltec, and he should be held to the same standard of proof that would have existed had he initially filed his claim against only Siltec. After reading the majority opinion, the Board and employer will feel like they have been in a football game where every time a team gets ready to kick a field goal, the referee changes the locations of the goal posts. In an area of the law fraught with statutory interpretation *82and hypertechnicalities, we do no service to claimants or employers when we fail to honor the principle of stare decisis.
I dissent.2
The Board adopted the findings of the referee, who said:
“[Njeither audiologist opined that the condition actually worsened during the Siltec employment. The evidence does not support a proposition that claimant’s employment at Siltec was even a material contributing cause of any worsening of the condition, and certainly does not rise to the level of establishing that the Siltec employment was the major contributing cause.” (Emphasis in original.)
As part of the 1990 amendments to the Workers’ Compensation Laws, the legislature enacted ORS 656.308, which effectively overturned the last injurious exposure rule as it relates to industrial injuries. See SAIF v. Drews, 318 Or 1, 7 n 3, 860 P2d 254 (1993). The legislature did not intend to overrule case law concerning the rule as it relates to occupational diseases. See Tape Recording, House Special Session, May 7, 1990, Tape 2, Side A at 190 (Representative Mannix) (“[tlhisbill does not address responsibility in occupational disease claims. That to me is a glaring omission that I hope we will take up next session”). But see Liberty Northwest Ins. Corp. v. Senters, 119 Or App 314, 850 P2d 403 (1993).