Retchless v. Laurelhurst Thriftway

696 P.2d 1181 (1985)

72 Or.App. 729

In the matter of the Compensation of Cleve A. RETCHLESS, Claimant. Cleve A. Retchless, Petitioner-Cross-Respondent, v. LAURELHURST THRIFTWAY and United Grocers Insurance, Respondents-Cross-Respondents, and Butler's Village Market and Industrial Indemnity Company, Respondents-Cross-Petitioners.

79-04418 and 79-08745; CA A30738.

Court of Appeals of Oregon.

Argued and Submitted October 17, 1984.

Decided March 20, 1985.

Reconsideration Denied May 10, 1985.

Mitchell Crew, Portland, argued the cause for petitioner-cross-respondent. With him on the brief was Mercer, MacLaren, King & Crew, Portland.

Allan M. Muir, Portland, argued the cause for respondents-cross-respondents. With him on the brief were Roger A. Luedtke, and Schwabe, Williamson, Wyatt, Moore & Roberts, Portland.

Scott M. Kelley, Portland, argued the cause for respondents-cross-petitioners. With him on the brief was Cheney & Kelley, P.C., Portland.

Before GILLETTE, P.J., and VAN HOOMISSEN and YOUNG, JJ.

VAN HOOMISSEN, Judge.

Claimant and Industrial Indemnity Company seek judicial review of an order on reconsideration of the Workers' Compensation Board. ORS 656.298. They contend that the Board erred in vacating its previous order that had affirmed the referee's conclusion that claimant had sustained a new injury in 1978 while employed by Laurelhurst Thriftway, rather than an aggravation of an injury sustained in 1973 while employed by Butler's Village Market. We reverse and remand for further proceedings.

Claimant sustained a compensable back injury in 1973, while employed by Butler's. Industrial Indemnity, Butler's carrier at that time, accepted the claim. It was closed by determination order in 1974. Claimant sustained a second compensable back injury in 1978, while employed by Laurelhurst. United Grocers Insurance was Laurelhurst's carrier at that time. Industrial Indemnity accepted that claim as an aggravation of claimant's 1973 injury. It was closed by determination order in May, 1979. In August, 1979, claimant filed a claim against Laurelhurst, alleging that the 1978 incident was a new injury. United Grocers Insurance denied responsibility. *1182 In 1981, Industrial Indemnity retroactively denied claimant's aggravation claim. Claimant appealed both denials.

The referee found that claimant had sustained a new injury in 1978. The Board affirmed that finding. However, on reconsideration, ORS 656.295, the Board held that Industrial Indemnity's acceptance of the 1978 aggravation claim, and payment of benefits, barred it from later denying claimant's aggravation claim. The Board relied on Bauman v. SAIF, 295 Or. 788, 670 P.2d 1027 (1983). We disagree with the Board's interpretation of Bauman.

We interpret Bauman to mean that Industrial Indemnity must pay compensation, at least until someone else is determined to be responsible. See Jeld-Wen, Inc. v. McGehee, 72 Or. App. 12, 695 P.2d 92 (1985). Here, the referee and the Board found that claimant had sustained a new injury in 1978 while employed by Laurelhurst. We agree. United Grocers Insurance was Laurelhurst's carrier at that time; it is responsible for the new injury.

Reversed and remanded for further proceedings.[1]

[1] Because we remand, we do not consider the merits of claimant's second assignment that the Board erred in denying him an award of attorney fees against Laurelhurst and its carrier on Board review.