Matter of Compensation of James

655 P.2d 620 (1982)

61 Or.App. 30

IN THE MATTER OF THE COMPENSATION OF DIANNE L. JAMES, Claimant. STATE ACCIDENT INSURANCE FUND Corporation, Petitioner, v. Dianne L. JAMES, Respondent-Cross-Petitioner.

No. 77-06474; CA A23245.

Court of Appeals of Oregon.

Argued and Submitted June 10, 1982.

Decided December 22, 1982.

Darrell E. Bewley, Appellate Counsel, State Accident Ins. Fund Corp., Salem, argued the cause and filed the brief for petitioner.

Gary M. Galton, Portland, argued the cause for respondent-cross-petitioner. On the brief were Alan M. Scott, Charles D. Colett, and Galton, Popick & Scott, Portland.

Before RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ.

RICHARDSON, Presiding Judge.

SAIF appeals an order of the Workers' Compensation Board holding that claimant's emotional disability is a compensable occupational disease. This is the second appeal in this case. In the first, we affirmed the Board's original order that found claimant's disability to be compensable. James v. SAIF, 44 Or. App. 405, 605 P.2d 1368 (1980). The Supreme Court granted review and remanded to this court, stating:

"In the present case there is a fact question whether claimant's condition *621 was caused by circumstances `to which an employee is not ordinarily subjected or exposed other than during a period of regular actual employment.'" 290 Or. 343, 351, 624 P.2d 565 (1981).

We, in turn, remanded the case to the Board, saying:

"Because the Supreme Court established a criterion for compensability of an occupational disease different than had been previously applied, the parties may not have adequately presented their case. They should have an opportunity to develop the case consistent with the statutory criterion interpreted by the Supreme Court. Accordingly, we remand the case to the Workers' Compensation Board for a determination of compensability. The Board, as it deems appropriate, may request additional briefing, additional evidence or remand the case to the referee for a further hearing." 51 Or. App. 201, 202, 624 P.2d 644 (1981).

On remand, the parties did not present further evidence, and the Board ruled on the existing record that the condition was compensable. The facts underlying claimant's claim are stated in our first opinion, 44 Or. App. at 407, 605 P.2d 1368, and that of the Supreme Court, 290 Or. at 345, 624 P.2d 565, and need not be restated.

Essentially, SAIF argues that claimant had a preexisting emotional disorder that made her susceptible to stress and resulted in disability. It contends that she responded to employment and nonemployment stresses that were both causes of her disability and that, under the Supreme Court's formulation, her disability is therefore not compensable.

In SAIF v. Gygi, 55 Or. App. 570, 574, 639 P.2d 655, rev. den. 292 Or. 825, 648 P.2d 849 (1982), we stated:

"We conclude that ORS 656.802(1)(a) does not require that the occupational disease be caused or aggravated solely by the work conditions. If the at-work conditions, when compared to the nonemployment exposure, are the major contributing cause of the disability, then compensation is warranted."

We conclude from our de novo review of the record that the at-work stress was the major contributing cause of claimant's disability.

SAIF also contends that there is no evidence that claimant's preexisting mental disorder was caused or aggravated by the work environment. That argument was also made in the original appeal. We concluded that claimant's underlying pathology was exacerbated and not simply made symptomatic by the conditions of her employment. We adhere to that conclusion.

Claimant cross-appeals, contending that the Board erred in not awarding her attorney fees pursuant to ORS 656.382(2) and ORS 656.386(1) on remand. SAIF agrees that the Board did err.

Order requiring SAIF to accept claim affirmed; remanded for award of attorney fees.