Oregon: “Impossible” Doesn’t Always Mean Literally Impossible

As is the case in a number of jurisdictions, in Oregon a presumptively responsible employer in an occupational disease claim may avoid liability, shifting such liability to a previous employment, if it can show that it was “impossible” for conditions at its own work site to have caused or worsened the claimant's disease. An Oregon appellate court reiterated that state law does not require a showing of “literal impossibility.” Here, the presumptively responsible employer’s expert admitted on cross examination that it was “possible” for the claimant to have experienced an increase in hearing loss of perhaps one percent after leaving the earlier employer. The doctor went on to say, however, that such a small change would not be medically significant. The previous employer argued that since it was “possible” for claimant’s condition to have worsened, there had been no showing of “impossibility.” The court disagreed.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Liberty Metal Fabricators, Inc. v. SAIF Corp. (In re Alcorn), 2019 Ore. App. LEXIS 154 (Jan. 30, 2019)

See generally Larson’s Workers’ Compensation Law, § 153.02.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see