Opinion
82-07496; CA A32907
Argued and submitted February 20, 1985
Affirmed April 17, 1985 Reconsideration denied May 24, 1985 Petition for review denied July 30, 1985 ( 299 Or. 583)
Judicial Review from Workers' Compensation Board.
Paul L. Roess, Coos Bay, argued the cause for petitioner. With him on the brief was Foss, Whitty Roess, Coos Bay.
James L. Edmunson, Eugene, argued the cause for respondent. With him on the brief were Dale C. Johnson, and Malagon Associates, Eugene.
Before Richardson, Presiding Judge, and Warden and Newman, Judges.
PER CURIAM
Affirmed.
Employer seeks review of an order of the Workers' Compensation Board which affirmed the referee's decision that claimant's worsened cervical condition is compensable. Claimant injured his back while working for employer. He subsequently left that employment, became self-employed and elected not to be covered by workers' compensation insurance. During his self-employment, he experienced increased back problems and underwent corrective surgery.
The referee and the Board determined that the test for compensability found in Grable v. Weyerhaeuser Company, 291 Or. 387, 631 P.2d 768 (1981), is the appropriate rule. Employer argues that the last injurious exposure rule explained in Boise Cascade Corp. v. Starbuck, 296 Or. 238, 675 P.2d 1044 (1984), should be applied, even though claimant was self-employed and not covered by workers' compensation insurance. It concedes that we rejected an identical contention in Peterson v. Eugene F. Burrill Lumber, 57 Or. App. 476, 645 P.2d 567 (1982), aff'd 294 Or. 537, 660 P.2d 1058 (1983), but argues that that case is wrong and should be overruled. We are not persuaded by employer's arguments.
Affirmed.