Opinion
No. 73 1182
Argued November 2, 1973
Reversed and remanded November 26, 1973
Appeal from Circuit Court, Lane County.
EDWIN E. ALLEN, Judge.
Harold W. Adams, Salem, argued the cause and filed the briefs for appellant.
Al J. Laue, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and FOLEY and THORNTON, Judges.
REVERSED AND REMANDED.
The sole issue in this case involves an application of that portion of the occupational disease law which provided that a medical board of review should hear appeals from findings of a hearing officer in occupational disease cases. The statutes, ORS 656.808 through 656.822, which were in effect at all stages of the proceedings below, have been repealed by Oregon Laws 1973, ch 543, p 1198, and therefore this opinion is probably of little interest except to the parties.
Loren Skirvin, now deceased, was a fireman. While fighting a fire he inhaled smoke and was hospitalized for treatment. In the course of the treatment the doctors discovered that he had lung cancer, from which he subsequently died. His widow's claim is that the smoke inhalation aggravated the decedent's preexisting cancer. The hearing officer found that the smoke inhalation did not aggravate the cancer, and denied compensation.
Claimant then petitioned the Workmen's Compensation Board to submit the claim to a medical board of review. The Board did not do this, but, rather, assumed jurisdiction and affirmed the hearing officer, stating in its order on review:
"The basic issue is, of course, whether the smoke inhalation episode aggravated the decedent's preexisting cancer. The Hearing Officer concluded that it did not and with that conclusion, we agree. His order should therefore be affirmed in its entirety."
The trial court affirmed the Board.
We reverse and remand for the appointment of a medical board of review under the provisions of former ORS 656.808 through 656.822. As we pointed out in Lawton v. SAIF, 5 Or. App. 539, 485 P.2d 1104 (1971), citing Beaudry v. Winchester Plywood Co., 255 Or. 503, 469 P.2d 25 (1970):
"* * * [D]isability resulting from on-the-job aggravation [here smoke inhalation] of a preexisting condition [here lung cancer] not caused by an injury * * * is an occupational disease * * *." 5 Or App at 544-45.
The Board relies on Schoch v. SAIF, 9 Or. App. 100, 496 P.2d 53 (1972), which is not determinative here. Schoch held that the statutory procedure applicable to injury claims rather than the statutory procedure formerly applicable to occupational disease claims should be followed when the claim is made for aggravation of a previously accepted claim for disability because of occupational disease. Schoch does not deal with a covered on-the-job aggravation of a preexisting physical defect. Such an aggravation is an original occupational disease claim. Lawton v. SAIF, supra.
Reversed and remanded.