
 Filed: 
 December 3, 1998




IN THE SUPREME COURT OF THE STATE OF OREGON
In the Matter of the Compensation of



Deana F. Marshall, Claimant.





DEANA F. MARSHALL,



	Respondent on Review,





	v.







SAIF CORPORATION,



	Petitioner on Review.





(WCB 92-09708; CA A90412; SC S44060)
	On review from the Court of Appeals.*





	Argued and submitted November 4, 1997; reassigned July 16,

1998.





	Michael O. Whitty, Salem, argued the cause for petitioner on

review.  Julene M. Quinn, Salem, filed the petition.





	Meagan Flynn, of Pozzi, Wilson, Atchison, Portland, argued

the cause for respondent on review.





	Before Carson, Chief Justice, Gillette, Van Hoomissen, and

Durham, Justices.**





	GILLETTE, J.





	The decision of the Court of Appeals is affirmed.  The order

of the Workers' Compensation Board is reversed, and the case is

remanded to the Workers' Compensation Board for further

proceedings.  







	*Judicial Review of an Order of the Workers' Compensation  

Board.  146 Or App 50, 931 P2d 823 (1997).





    **Fadeley, J., retired January 31, 1998, and did not

participate in this decision; Graber, J., resigned March 31,

1998, and did not participate in this decision; Kulongoski, J.,

did not participate in the consideration or decision of this

case.





		GILLETTE, J.



		In this workers' compensation case, the issue is

whether claimant, a sole proprietor, submitted sufficient

evidence to corroborate her claim of compensability for an

occupational disease, thereby permitting recovery under ORS

656.128(3).(1)
  The Workers' Compensation Board (Board) concluded

that a doctor's report, based on a history provided by claimant,

was insufficient and upheld the insurer's denial of the claim. 

The claimant appealed, and a divided Court of Appeals, sitting en

banc, reversed, holding that a doctor's opinion as to diagnosis,

causation, and treatment is, by its very nature, based on more

than a patient's statements and, therefore, corroborates the

components of proof of compensability.  Marshall v. SAIF Corp.,

146 Or App 50, 931 P2d 823 (1997) (Marshall II).  We allowed the

insurer's petition for review to consider the quantity and

quality of corroborative evidence that must appear in the record

to satisfy the requirements of ORS 656.128(3).  We now affirm the

decision of the Court of Appeals, but on different grounds. 



		The facts of the case that are pertinent to the issue

before the court are undisputed.  Claimant has been a hairdresser

for 35 years.  For approximately the past 20 years, she has been

the sole proprietor of her own salon.  She elected workers'

compensation coverage for herself with SAIF Corporation (SAIF)

under ORS 656.128.  



		In 1991, claimant began to notice pain in her right

hand and arm.  The symptoms gradually worsened and, by January

1992, the pain had radiated up through her wrist and elbow into

her shoulder.  In February 1992, claimant consulted a physician,

Dr. Rabie, who diagnosed tendinitis and capsulitis in her right

index finger, thumb, elbow, and shoulder.  Based on claimant's

account of her condition, Rabie concluded that the problem was

the result of her repetitious hand and arm movements at work, and

instructed her to limit her work to four hours per day.  



 		In April 1992, claimant submitted a workers'

compensation claim for tendinitis in her right thumb, finger,

elbow, and shoulder.  SAIF denied the claim on the ground that

claimant's work as a hairdresser was not the major contributing

cause of the development or worsening of her tendinitis. 

Claimant requested a hearing and, before a Hearings Division

referee, presented her own testimony as to compensability, along

with Rabie's report diagnosing tendinitis and concluding, based

on information that claimant had provided to him, that claimant's

condition resulted from her work activities. 



		After the hearing, SAIF submitted a trial memorandum to

the referee in which it contended that, in addition to its other

reasons for denying claimant's claim, the claim should be denied

because claimant failed to sustain her burden of proof as a sole

proprietor under ORS 656.128(3).(2)  SAIF argued that, because the

only evidence that claimant offered at the hearing to support the

claim that the condition was work-related was claimant's own

testimony and the doctor's report (which, itself, was based on

claimant's own recitation of her history), claimant had failed to

submit corroborative evidence "in addition to" her own evidence.  



		In response, claimant argued, among other things, that

ORS 656.128(3) requires sole proprietors to submit evidence

corroborating only the fact of coverage under the workers'

compensation statute (which is not in dispute in this case), not

compensability under that law.  The referee accepted that

interpretation and concluded that claimant had proved that she

was eligible for workers' compensation coverage as a self-employed worker. 
 Turning to the merits of claimant's claim, the

referee found that claimant's work required fast, repetitive use

of her hands and arms, that she performed no repetitive

activities with her hands off-work, and that claimant's work

activity as a hairdresser was the major contributing cause of her

condition.  He concluded that claimant had met her burden of

proof.  SAIF requested review.  The Board affirmed and adopted

the referee's order.  



		SAIF sought judicial review in the Court of Appeals. 

That court reversed the Board on the issue of the proper

interpretation of ORS 656.128(3), holding that "the corroboration

requirement pertains to facts essential to the allowance or

payment of claims for compensation, i.e., compensability," rather

than to coverage.  SAIF Corp. v. Marshall, 130 Or App 507, 510,

882 P2d 1115, rev den 320 Or 492, 887 P2d 793 (1994) (Marshall

I).  It remanded the case to the Board for reconsideration.  



		On remand, claimant asserted that her consistent

medical histories, provided to her own doctor and to the

physicians who examined her on behalf of SAIF, as well as her

consistent statement to SAIF's investigator, constituted

sufficient corroborative evidence to satisfy the requirements of

ORS 656.128(3).(3)

		In its order on remand, the Board held that the

corroborative evidence required by the statute "must be

supplementary to and of a different character from claimant's

evidence."  On the facts of the present case, the Board concluded

that neither the physicians' reports nor claimant's statement to

the investigator constituted "corroborative evidence in addition

to the evidence of the claimant," inasmuch as they were not

supplementary to or different in character from her own

testimony.  According to the Board, the medical reports

corroborated the existence of claimant's medical condition, but

they did not corroborate the cause of that condition. 

Consequently, it reinstated and upheld SAIF's denial of

claimant's claim.(4)
		Claimant again sought judicial review in the Court of

Appeals, this time assigning error to the Board's conclusion that

Rabie's medical report did not constitute corroborative evidence

of compensability and, alternatively, to the Board's refusal to

remand the case to the referee to allow claimant to present

additional corroborative evidence.  The Court of Appeals reversed

the Board on the first issue and, therefore, did not reach the

second.  



		In its opinion, the Court of Appeals began by analyzing

the wording of ORS 656.128(3), using the methodology prescribed

by this court in PGE v. Bureau of Labor and Industries, 317 Or

606, 610-12, 859 P2d 1143 (1993).  It looked at the text of the

statute and construed words of common usage according to their

plain, natural, and ordinary meaning.  Marshall II, 146 Or App at

53.  The court noted that the word "corroborative" is not defined

in the statute but that, according to Webster's Third New World

Dictionary, 512 (1971), "corroborative" means "tending to make

more certain."  Marshall II, 146 Or App at 53.  The court also

noted that Black's Law Dictionary, 414 (rev 4th ed 1968) defines

"corroborating evidence" as "[e]vidence supplementary to that

already given and tending to strengthen or confirm it; additional

evidence of a different character to the same point."  Based on

those dictionary definitions, the court concluded that "any

evidence that makes more certain either the 'arising out of' or

'in the course of' prong of compensability is corroborative." 

Id. at 53-54 (emphasis in original).(5)
		The Court of Appeals assumed, for the sake of

discussion, that the phrase "evidence of the claimant" in ORS

656.128(3) means claimant's own statements and then rejected

SAIF's argument that the medical reports are not in addition to

claimant's statements.  Id. at 54.  The court stated that,

although the doctor relied on the patient's history to formulate

a medical opinion, the opinion was his own, based collectively on

the patient's history, a physical examination, and the doctor's

own expertise.  Ibid.  The court held that, 



	"[n]ot only are the medical reports 'in addition to'

claimant's statements, they do, in fact, corroborate

compensability.  They show that the claimant described

to her doctor the same employment conditions that she

had reported on her claim and to which she testified. 

The doctor's opinion attributes claimant's injury and

need for treatment to the employment conditions

claimant described. The reports accordingly corroborate

both the 'arising out of' and 'in the course of'

components of proof of compensability, ORS 656.005(7),

and satisfy the requirement of ORS 656.128(3), because

they make more certain the compensability of the

claim."

Ibid.
		On review, we need not address the correctness of the

Court of Appeals' reasoning regarding the sufficiency of the

medical reports, because, for the following reasons, we conclude

that sufficient corroborative evidence is present in this case to

support the claim. 



		At the outset, we note that claimant's tendinitis is

compensable, if at all, as an "occupational disease" under ORS

656.802(1)(a)(C).  That section defines an occupational disease

as a "series of traumatic events or occurrences which requires

medical services or results in physical disability," that

"arise[s] out of and in the course of employment caused by * * *

activities to which an employee is not ordinarily subjected or

exposed other than during a period of regular actual employment." 

Employment conditions must be "the major contributing cause of

the disease."  ORS 656.802(2)(a).  



		Claimant has the burden of proving, by a preponderance

of the evidence, that the occupational disease is compensable. 

ORS 656.266; Hutcheson v. Weyerhaeuser, 288 Or 51, 55-56, 602 P2d

268 (1979).  In the ordinary case, where the claimant is an

employee of a covered employer, the claimant can make out a prima

facie case of compensability with her own testimony, so long as

it is credible, together with "medical evidence supported by

objective findings" establishing the existence of an occupational

disease.  ORS 656.802(2)(d).  Where, as here, the claimant is a

sole proprietor, however, she carries an additional burden.  ORS

656.128(3) provides:



	"[n]o claim shall be allowed or paid under this section

[permitting sole proprietors to elect workers'

compensation coverage], except upon corroborative

evidence in addition to the evidence of the claimant."

		The statute requires the claimant to produce

corroborative evidence in addition to the "evidence of the

claimant."  (Emphasis added.)  However, as the Court of Appeals

recognized, the statute does not define the phrases

"corroborative evidence" or "evidence of the claimant," nor does

it specify what, exactly, must be corroborated.  As did the Court

of Appeals, we attempt to discern the intent of the legislature

using the methodology set out in PGE v. Bureau of Labor and

Industries, 317 Or at 610-612.  At the first level of our

analysis, we look at the text and context of the statutory

section itself.  Id. at 610-611. 



		It is clear that the legislature could not have

intended the phrase "evidence of the claimant" to mean all the

evidence a claimant presents at a workers' compensation hearing,

for that would lead to the absurd result that no claimant could

ever meet the burden because any evidence offered as

corroboration would, itself, be "evidence of the claimant."  At

the same time, the statute does not require merely that a

claimant's testimony be corroborated by other evidence.  The

text, therefore, suggests that something more is required and

appears to reflect a heightened legislative concern over a

claimant's credibility.  It is evident from the wording in ORS

656.128(3), that the purpose of the statute is to prevent fraud;

that is, to prevent a sole proprietor from falsely claiming

workers' compensation coverage for any injury or occupational

disease that is not compensable.  We conclude, therefore, that it

is a claimant's statements, in or outside of a legal proceeding,

that must be corroborated under ORS 656.128(3).   



		Turning to "corroborative evidence," we agree with the

Court of Appeals' definition of that phrase, as "evidence,

different from the evidence of the claimant, that tends to make

more certain the compensability of the claim."  Marshall II, 146

Or App at 53.  We have defined corroboration or corroborative

evidence similarly in other contexts in our decisions over the

years.  For example, in Farmers Insurance Exch. v. Colton, 264 Or

210, 217, 504 P2d 1041 (1972), quoting 2 E. Conrad, Modern Trial

Evidence § 1155 (1956), we held that "corroboration" is

"'something which leads an impartial and reasonable mind to

believe that material testimony is true, testimony of some

substantial fact or circumstance independent of a statement of a

witness.'"  Nothing in the statutory context of ORS 656.128(3)

points to a different interpretation.  Therefore, we hold that

the corroborative evidence required in ORS 656.128(3) must be

independent of and apart from claimant's own statements.



		The remaining question, then, is what, exactly, a sole

proprietor must corroborate.  As the Court of Appeals held in

Marshall I, the wording of the statute requires the claimant to

corroborate compensability.  To be compensable, an injury or

occupational disease must arise out of and in the course of

employment.  ORS 656.005(7)(a); ORS 656.802(1)(a).  In the case

of an occupational disease, there is the additional requirement

that the employment conditions were the major contributing cause

of the disease.  ORS 656.802(2)(a).  We have held, in the context

of an accidental injury, that the "arising out of" prong and the

"in the course of" prong are "two parts of a single 'work-connection' analysis, in order to determine whether an employee

suffered a compensable injury."  Krushwitz v. McDonald's

Restaurants, 323 Or 520, 526, 919 P2d 465 (1996); Norpac Foods,

Inc. v. Gilmore, 318 Or 363, 366, 867 P2d 1373 (1994) ("'arising

out of' and 'in the course of' are two elements of a single

inquiry").  Likewise, the requirement that employment conditions

be the major contributing cause of an occupational disease is

part of that "work-connection" analysis.  



		To corroborate compensability, then, a sole proprietor

must provide not only corroborative evidence of the existence of

the injury or disease, but also corroborative evidence that the

injury or occupational disease is work-related.  The evidence is

"corroborative" if it supplements, strengthens, and confirms the

testimony of the claimant and tends to verify her version of the

facts.  Nothing in ORS 656.128(3), however, requires the claimant

establish a prima facie case with corroborative evidence.  We

hold that a sole proprietor satisfies the corroboration

requirement of ORS 656.128(3) if she provides any evidence,

independent of and apart from her own statements, that

supplements, strengthens, and confirms that the injury or disease

exists and that it is work-related.  We thus find the statute's

meaning to be clear at the first level of inquiry, and need not

inquire further.  PGE v. Bureau of Labor and Industries, 317 Or

at 611.    



		At the hearing before the Board, claimant provided

corroborative evidence of the existence of her tendinitis in the

form of Rabie's medical report.  It is true that even the

doctor's medical conclusions are based, in part, on claimant's

complaints of pain in her hand, arm, and shoulder.  Yet, the

doctor's own examination, expertise, and diagnosis are necessary

to confirm that the disease of tendinitis exists.  That

additional "evidence" provides sufficient corroboration of

claimant's claim in that regard.  



		Finally, we consider whether the doctor's report

corroborated claimant's assertion that the tendinitis is work-related.  We hold that it did, under the peculiar facts presented

here.  There are a few kinds of employment that are so familiar

to the ordinary person that no further proof of specific physical

activities by a claimant on the job is required.  We believe that

the work of a hairdresser fits within such a class.  Most persons

have observed hairdressing first hand and, even for those who

have not, they almost surely are aware that the work requires

rapid and repetitious hand and arm movements.  The doctor should

be deemed to have been aware of that fact independent of

claimant's history.  Thus, in this case, the necessary

corroboration was present.



		SAIF argues that claimant separately must corroborate

the fact that her work was the major contributing cause of her

disease.  The effect of that argument in the present case would

be to require claimant to submit corroborative evidence of a

negative, viz., of the fact that she did not carry on activities

off the job that involved rapid and repetitious hand and arm

movements of the kind that could have caused her tendinitis.  We

hold, however, that claimant satisfied that requirement of ORS

656.128(3) by providing evidence corroborating the job-related

nature of her claim.  That, coupled with her denial of similar

physical activity off the job, made out her prima facie case.



		It follows from the foregoing that, although we

disagree with portions of the analysis of the Court of Appeals in

this case, we do agree with its conclusion.



		The decision of the Court of Appeals is affirmed.  The

order of the Workers' Compensation Board is reversed, and the

case is remanded to the Workers' Compensation Board for further

proceedings.








1. 	ORS 656.128(3) provides:


		"No claim shall be allowed or paid under this

section, except upon corroborative evidence in addition

to the evidence of the claimant."


Return to previous location.



2. 	SAIF also had raised the general issue of the

applicability of ORS 656.128(3) orally at the hearing.  


Return to previous location.



3. 	Claimant also asked the Board to remand the case to the

referee for the presentation of additional corroborative

evidence, should the Board find her corroboration argument

unpersuasive.


Return to previous location.



4. 	The Board refused to remand the case to the referee to

allow claimant to offer additional evidence.  

Return to previous location.


5. 	Although not discussed in the Court of Appeals'

opinion, the reference to the "'arising out of' or 'in the course

of' prong" is a reference to the workers' compensation statute

that defines a compensable injury or occupational disease as one

"arising out of and in the course of employment."  ORS

656.005(7)(a); ORS 656.802(1)(a).  See, e.g., Krushwitz v.

McDonald's Restaurants, 323 Or 520, 526, 919 P2d 465 (1996)

(explaining that the "arising out of" and "in the course of"

requirements of the statute are two parts, or "prongs," of a

single, unitary, test).

Return to previous location.

