FILED: NOVEMBER 29, 2002

IN THE SUPREME COURT OF THE STATE OF OREGON

In the Matter of the Compensation of
Geoffrey R. Lewis, Claimant.

SAIF CORPORATION
and OREGON STATE UNIVERSITY,

Respondents on Review,

v.

GEOFFREY R. LEWIS,

Petitioner on Review.

(WCB 97-04909; CA A103052; SC S47997)

On review from the Court of Appeals.*

Argued and submitted September 7, 2001.

Robert J. Thorbeck, Salem, argued the cause and filed the petition for review for petitioner on review.

David L. Runner, Special Assistant Attorney General, Salem, argued the cause and filed the brief for respondents on review.

G. Duff Bloom, Cole, Cary, Wing & Bloom, P.C., Eugene, filed a brief for amicus curiae Oregon Trial Lawyers Association.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and Balmer, Justices.**

DURHAM, J.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is affirmed.

*Judicial Review from the Workers' Compensation Board. 170 Or App 201, 12 P3d 498 (2000).

**De Muniz, J., did not participate in the consideration or decision of this case.

DURHAM, J.

In this workers' compensation proceeding, the Workers' Compensation Board (board) concluded that claimant's occupational disease was compensable because medical evidence supported by objective findings established the existence of the disease, as ORS 656.802(2)(d) requires. The Court of Appeals reversed because, in its opinion, "objective findings," as defined in ORS 656.005(19), did not support the medical evidence of claimant's disease. SAIF v. Lewis, 170 Or App 201, 215, 12 P3d 498 (2000). Claimant seeks review of the Court of Appeals' decision. We reverse.

The requirement of "objective findings" in support of medical evidence of an occupational disease arises from ORS 656.802(2)(d), which provides:

"Existence of an occupational disease or worsening of a preexisting disease must be established by medical evidence supported by objective findings."

(Emphasis added.) ORS 656.005(19) defines "objective findings" as follows:

"'Objective findings' in support of medical evidence are verifiable indications of injury or disease that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm. 'Objective findings' does not include physical findings or subjective responses to physical examinations that are not reproducible, measurable or observable." (1)

With that statutory framework in mind, we turn to the facts, which the board summarized as follows:

"Claimant worked as a bioscience research technician for SAIF's insured. On February 11, 1997, claimant's work involved cleaning a building which contained insecticides, herbicides and fungicides in liquid, powder and granular forms. Claimant and his co-workers moved the chemicals and cleaned the room. Claimant also scraped paint from the ceiling and walls to prepare them for repainting. The room was dusty and the work stirred up dust.

"Claimant wore protective clothing, including a charcoal respirator mask. The mask leaked. Claimant also wore goggles part of the time, but he took them off when they became fogged.

"During the job, claimant experienced fatigue and eye irritation. At about 3 p.m., after working, claimant felt 'flat,' disoriented, confused, and 'funny in the eyes.' He experienced eye irritation, tearing, coughing, and wheezing on his way home. That evening, claimant noticed a 'yellowish-whitish' powder in his nostrils. He had difficulty concentrating. By the next morning, claimant had a sore throat, sore neck, fatigue, dizziness, tinnitus, headache, sinus congestion, bright yellow phlegm and sputum, a chemical taste in his mouth, and vision abnormalities.

"Claimant continued working. He sought medical treatment from Dr. Huff, his regular physician in early March, 1997. By that time he was about 70 percent recovered. Dr. Huff referred claimant to Dr. Stringham, who examined claimant once and ordered tests. Dr. Stringham opined that claimant's work exposure caused the symptoms for which he sought treatment.

"Dr. Huff also referred claimant to Oregon Health Science University, where he was examined by Drs. Berlin and Burton on May 9, 1997. Dr. Quarum examined claimant on May 29, 1997. By that time, claimant believed that he was 95 percent recovered.

"Claimant filed a claim for exposure to pesticide-contaminated dust. * * * SAIF denied the claim for 'injury to [claimant's] respiratory system,' stating that there was insufficient evidence of 'a diagnosable condition relating to the chemical exposure.' * * *. Claimant requested a hearing."

The record contains conflicting evidence from expert witnesses. The board agreed with insurer that objective findings did not support the medical evidence of some of claimant's symptoms. No party challenges that conclusion on review. The board also concluded:

"However, we note that [claimant's treating physician] Dr. Stringham reported: 'On a clinical basis, [claimant] has an exposure.' * * * Dr. Stringham's opinion in this regard is supported by claimant's additional symptoms, which included irritated eyes, sinus congestion, and production of bright yellow phlegm and sputum. Because the latter symptoms are observable and verifiable, they are 'objective' under the statute."

The board also found that Dr. Stringham's opinion was more persuasive than the contrary opinions of insurer's experts, stating that his "reasoning and conclusions are based on a more accurate history and are more consistent with claimant's clinical course * * *."

On judicial review from the board's order in claimant's favor, the Court of Appeals interpreted the definition of "objective findings" in ORS 656.005(19) to require a medical expert to perform three acts when diagnosing an injury or disease: (1) to conduct a medical examination to attempt to verify the injury or disease; (2) to succeed in verifying the injury or disease during the examination; and (3) to make findings in accordance with the examination and verification. Additionally, the Court of Appeals concluded: "Necessarily, then, the indications of an injury or disease must, at the time of the examination, be presently verifiable." Lewis, 170 Or App at 212 (emphasis in original). This court allowed review to determine whether the Court of Appeals has construed and applied correctly the statutory requirement of objective findings in the context of this case.

Our objective in construing the pertinent statutes is to determine the intent of the legislature. McLean v. Buck Medical Services, Inc., 334 Or 17, 24, 45 P3d 120 (2002). We consider first the text and context of ORS 656.802(2)(d). The introductory clause of that statute, "[e]xistence of an occupational disease * * * must be established * * *[,]" states a proof requirement. That is, before the board may deem an occupational disease to be compensable, the evidentiary record must persuade the board to find as fact that an occupational disease existed or exists as the claim asserts. (2)

The next phrase, "by medical evidence," indicates that a particular kind of evidence, that is, "medical evidence," must establish the existence of the occupational disease. The parties agree, as do we, that the opinion of a medical expert, such as Stringham in this case, qualifies as "medical evidence" under the statute.

The foregoing conclusions arise from a straightforward reading of the text of ORS 656.802(2)(d). All that remains is to construe that subsection's final phrase, "supported by objective findings." The legislature has defined "objective findings" in ORS 656.005(19). We focus our analysis on that definition.

The first sentence of ORS 656.005(19) defines "'[o]bjective findings' in support of medical evidence" as "verifiable indications of injury or disease" (emphasis added) and then sets out a nonexclusive list of illustrative examples "that may include, but are not limited to, range of motion, atrophy, muscle strength and palpable muscle spasm." An "indication" is "something (as a signal, sign, suggestion) that serves to indicate." Webster's Third New Int'l Dictionary 1150 (unabridged ed 1993). "Indicate" means

"to point out or point to or toward with more or less exactness : show or make known with a fair degree of certainty : as * * * to show the probable presence or existence or nature or course of : give fair evidence of : be a fairly certain sign or symptom of : reveal in a fairly clear way * * *."

Id. The word "verifiable" means "1 : capable of being verified 2 : susceptible to the possibility of being either theoretically or actually proved true or false by reference to empirical facts[.]" Id. at 2543.

The application of those definitions leads to the conclusion that the legislature intended the phrase "objective findings in support of medical evidence" in the first sentence of ORS 656.005(19) to refer to symptoms that indicate the probable presence of an injury or disease. Additionally, the indication of injury or disease must be capable of being "verified," that is, be susceptible to the possibility that a reference to empirical facts either theoretically or actually will prove the claim of injury or disease to be true or false. The four examples of conditions set out at the end of that sentence share each of those characteristics.

We draw attention to the significance of the legal context in which we apply the statutory definition in ORS 656.005(19). As noted below, the requirement in ORS 656.005(19) that an indication of injury or disease be capable of being verified itself does not establish an additional requirement that the indication of injury or disease also be present, such as during a doctor's diagnostic examination of the claimant. In the present case, we apply the requirement of "medical evidence supported by objective findings," ORS 656.802(2)(d), in the context of a dispute over compensability, that is, whether the medical evidence was sufficient to support a finding that claimant had or has an occupational disease. Other statutes may alter the issues to which medical evidence supported by objective findings must respond. For example, ORS 656.283(7) provides procedures for a hearing regarding a worker's disability following reconsideration under ORS 656.268. That statute states:

"Evaluation of the worker's disability by the Administrative Law Judge shall be as of the date of issuance of the reconsideration order pursuant to ORS 656.268. Any finding of fact regarding the worker's impairment must be established by medical evidence that is supported by objective findings."

If a claimant contends in a hearing under ORS 656.283(7) that a temporary disability has become permanent, then the medical evidence supported by objective findings logically must be sufficient to support a finding of fact that the disability not only existed, but has become permanent.

As the foregoing discussion demonstrates, the statutory context of the dispute and the claims of the parties ordinarily will determine the legal and factual issues that medical evidence supported by objective findings must address. This case requires the court to consider the requirement of medical evidence supported by objective findings only in the context of a compensability dispute arising under ORS 656.802(2).

We turn to the second sentence of ORS 656.005(19). The legislature added the second sentence of ORS 656.005(19) in 1995. Or Laws 1995, ch 332,