source: Caselaw Access Project

author: GARRETT, J.

license: Public Domain

text:
    In the MATTER OF the COMPENSATION OF Elvia GARCIA-SOLIS, Claimant.
    Elvia Garcia-Solis, Petitioner on Review, v. Farmers Insurance Company; and Yeaun Corporation, dba Green Papaya and Sunset Deli, Respondents on Review.
    WCB 12-03622 (SC S065956)
    Supreme Court of Oregon, En Banc.
    Argued and submitted January 17, 2019. May 31, 2019
    Julene M. Quinn, Portland, argued the cause and filed the briefs for petitioner on review.
    James W. Moller, Wilsonville, argued the cause for respondents on review. Vera Langer, Lyons Lederer, LLP, Salem, filed the brief.
    James S. Coon, Thomas, Coon, Newton & Frost, Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.
    Julie Masters, Appellate Counsel, SAIF Corporation, Salem, filed the brief for amici curiae SAIF Corporation and Timber Products Company.
   GARRETT, J.

Claimant Elvia Garcia-Solis (claimant) was injured in a work-related accident. Farmers Insurance Company and Yeaun Corporation (collectively referred to here as insurer) accepted a workers' compensation claim and certain specified medical conditions associated with the accident. Because claimant also showed psychological symptoms, her doctor recommended a psychological referral to diagnose her for possible post-traumatic stress disorder (PTSD). Insurer argued, and the Court of Appeals agreed, that the cost of the psychological referral was not covered by workers' compensation because claimant had failed to prove that it was related to any of the medical conditions that insurer had accepted. Garcia-Solis v. Farmers Ins. Co. , 288 Or. App. 1, 403 P.3d 803 (2017). We allowed review and now reverse.

I. FACTS

A. Legal Background

This case involves the state workers' compensation system. A brief overview will give context for the discussion that follows.

Oregon's workers' compensation law requires employers to provide compensation to workers who suffer "compensable injuries." ORS 656.017(1). The term "compensable injury" is defined in ORS 656.005(7)(a) as:

"an accidental injury *** arising out of and in the course of employment requiring medical services or resulting in disability or death[.]"

If there is an "accident resulting in an injury or death," the worker must give the employer notice "immediately" after the accident. ORS 656.265(1)(a) (discussing additional time limits). Within 60 days after the employer has notice or knowledge of a claim, the insurer (or self-insured employer ) must give the employee a written notice of acceptance or denial. ORS 656.262(6)(a). A written notice of acceptance must "[s]pecify what conditions are compensable." ORS 656.262(6)(b)(A) ; see also ORS 656.267(1) (employer's notice of acceptance is sufficient if it "reasonably apprises the claimant and the medical providers of the nature of the compensable conditions").

In general, the claimant has the burden to show that an "injury" is compensable. ORS 656.266(1). If a claimant believes that a written notice of acceptance incorrectly omits a compensable condition, he or she may object at any time and file a claim for the omitted condition. ORS 656.262(6)(d).

The issue in this case involves the medical services that the insurer must provide. Under ORS 656.245(1)(a), an insurer must provide services to the injured worker "[f]or every compensable injury." Specifically, the statute provides in part:

"For every compensable injury, the insurer *** shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires, *** including such medical services as may be required after a determination of permanent disability."

B. Facts

The facts, which are undisputed, are largely taken from the opinion of the administrative law judge (ALJ).

In 2009, high winds blew down a tent pole at an event where claimant was working as a food server. She was struck on the head and slammed against a wall. Claimant suffered multiple injuries and was hospitalized.

It is not disputed that claimant suffered an accidental injury that arose out of and in the course of her employment. See ORS 656.005(7)(a). Insurer initially accepted the following conditions:

• left midshaft clavicle fracture
• first through third left rib fractures
• C7-T3 spinous process fractures
• full thickness scalp laceration
• left elbow contusion
• T5-T8 compression fractures

In 2011, insurer also accepted the following conditions:

• concussion
• closed head injury
• chronic headache syndrome
• facial scarring
• right supraorbital nerve injury

The issue before us involves psychological symptoms. As early as January 2010, claimant had reported to her doctor, Dr. Erb, that she was having psychological problems when it was windy. The doctor's notes reported that claimant " 'becomes very tearful during a wind storm and quite frightened.' " In late 2011 and again in early 2012, claimant's son reported that claimant was still reacting fearfully to wind. In response, Erb recommended a "[p]sychology referral to address PTSD[ ]like symptoms."

Insurer refused to authorize the psychology referral on the ground that the referral was not causally related to any of the conditions that insurer had accepted.

Claimant then sent Erb the following question:

"Is [claimant's] need for medical services in the form of 'Psychology referral to address PTSD-like symptoms' caused in material part by her work injury of February 25, 2009 in which she sustained severe injuries ***?"

(Emphasis omitted.) Erb checked the following box:

"Yes, [claimant's] need for medical services in the form of 'Psychology referral to address PTSD-like symptoms' [was] caused in material part by her work injury of February 25, 2009."

(Emphasis omitted.)

The matter went to an ALJ, who ruled for insurer. The ALJ explained that the medical services required by ORS 656.245(1)(a) had to be for a "compensable injury," and the Court of Appeals had held that "compensable injury" meant only those conditions previously accepted by an insurer-not necessarily all medical conditions caused by the work injury. Although Erb's response to the question showed that the need for the psychology referral had been caused in material part by claimant's accident at work, Erb did not diagnose claimant with the medical condition of PTSD, nor did the doctor state that the psychology referral was caused by any of the accepted conditions. Thus, the ALJ explained, claimant had not met her burden of proof.

In so ruling, the ALJ expressed sympathy for claimant. He explained that claimant was effectively trapped:

"Claimant *** faces the dilemma that she needs the [psychology] evaluation to determine if she has a mental health condition compensably related to her workplace injury, but she cannot get the insurer to pay for that evaluation because she does not yet have a diagnosis on which to premise a new medical condition claim."

Claimant appealed to the Workers' Compensation Board, which affirmed. The board reiterated that Erb's response to the questions connected the psychology referral only to the "work injury" and not to any accepted condition.

Claimant sought judicial review from the Court of Appeals, arguing on review that diagnostic medical services did not need to relate to an accepted condition, only to the work injury.

A majority of the Court of Appeals rejected her argument and affirmed the board. The majority read this court's decision in Brown v. SAIF , 361 Or. 241, 283, 391 P.3d 773 (2017), to compel the conclusion that "compensable injury" referred only to the already accepted conditions and did not include any compensable condition that had not been accepted. Garcia-Solis , 288 Or. App. at 5, 403 P.3d 803.

Judge Egan filed a dissent. He argued that Brown had only addressed a narrow issue regarding "combined condition" claims, and it had concluded-in that context-that "compensable injury" meant an accepted condition. Id . at 6, 403 P.3d 803 (Egan, J., dissenting). But Brown had also explained that the workers' compensation statutes did not always use terminology consistently, and the opinion had expressly reserved judgment on what "compensable injury" meant in connection with diagnostic services. Id . at 6-7, 403 P.3d 803. Judge Egan concluded that ORS 656.245(1)"explicitly equates 'compensable injury' with the incident of injury rather than the condition accepted by the insurance carrier." Id. at 8, 403 P.3d 803.

Claimant sought review, which we allowed.

II. DISCUSSION

The issue before this court involves ORS 656.245 (1)(a), which provides in part: "For every compensable injury, the insurer *** shall cause to be provided medical services for conditions caused in material part by the injury ***."

We begin our analysis by noting several questions that we are not required to address. First, the parties appear to agree that "medical services" includes diagnostic services, and so we will presume that they qualify. Next, the parties have not presented any question as to whether claimant's PTSD symptoms qualify as a "condition," and so we will presume that they do. Finally, the parties do not challenge in this court the board's factual findings that the medical services sought here were caused in material part by the workplace accident but were not caused in material part by any "accepted condition."

The issue before us, then, is the legal question regarding the meaning of "compensable injury." Insurer asserts that the Court of Appeals correctly held that "compensable injury" means only "accepted conditions." It relies primarily on the definition in ORS 656.005(7)(a) and this court's decision in Brown . Because the medical services sought by claimant are not for any accepted condition, insurer maintains that the services are not for a "condition[ ] caused *** by the [compensable] injury." ORS 656.245(1)(a).

Claimant asserts that "compensable injury" in ORS 656.245(1) is not limited to accepted conditions, but refers more generally to the workplace accident that created the need for medical treatment. Because the board found that claimant had presented evidence that her requested medical services were caused in material part by the workplace accident, claimant contends those medical services are "for conditions caused *** by the [compensable] injury."

The issue before us is one of statutory construction. Accordingly, we consider the text, context, and any relevant legislative history under the methodology articulated in PGE v. Bureau of Labor and Industries , 317 Or. 606, 610-12, 859 P.2d 1143 (1993), and State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

We begin with the statutory text. ORS 656.245(1)(a) provides:

"For every compensable injury, the insurer *** shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires, *** including such medical services as may be required after a determination of permanent disability. In addition, for consequential and combined conditions described in ORS 656.005(7), the insurer or the self-insured employer shall cause to be provided only those medical services directed to medical conditions caused in major part by the injury."

If "compensable injury" here means the work accident, then claimant is correct and the insurer must provide medical services for those conditions "caused in material part by the" work accident. If "compensable injury" means only those conditions already accepted by the insurer, however, then insurer is correct: Claimant's requested medical services were not caused in material part by an accepted condition, and thus insurer need not provide those services under ORS 656.245(1)(a).

As noted above, "compensable injury" is a defined term, so we begin our analysis with that definition. See Comcast Corp. v. Dept. of Rev. , 363 Or. 537, 544, 423 P.3d 706 (2018) (giving primacy to statutory definition). ORS 656.005(7)(a) provides in part:

"A 'compensable injury' is an accidental injury, or accidental injury to prosthetic appliances, arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means, if it is established by medical evidence supported by objective findings, subject to the following limitations [not relevant here.]"

Insurer argues that Brown interpreted that definition and held that "compensable injury" refers only to accepted conditions. We certainly agree that Brown leaves little doubt that it interpreted the statutory definition of "compensable injury" to mean medical conditions and not the work accident generally. See 361 Or. at 255-72, 391 P.3d 773 (reviewing text, context, and legislative history to conclude that "injury" means a medical condition, not an accident). This court noted that the definition in ORS 656.005(7)(a) refers not just to an accidental injury, but to an accidental injury to a prosthetic appliance-something that is "not an event," but instead "the result of an accidental event." Id . at 256, 391 P.3d 773 (emphasis omitted). Additionally, the statutory definition requires that the "compensable injury" be determined by "medical evidence" and supported by "objective findings," which is more consistent with the term meaning a medical condition rather than the work accident itself. Id . at 257, 391 P.3d 773.

The Brown opinion is less clear as to whether "compensable injury" refers only to accepted medical conditions-a question that was not before us. Brown involved the meaning of "otherwise compensable injury" as used in ORS 656.005(7)(a)(B), which addresses what is known as a "combined condition." Much of the court's analysis was focused on that specific definition, and the rationale is not necessarily applicable to the term "compensable injury" as used elsewhere in the statutory scheme.

At the same time, Brown does contain several broad assertions that "compensable injury" means "accepted conditions." See id . at 273, 391 P.3d 773 ("Although the original definition of 'compensable injury' in 656.005(7)(a) did not explicitly link the term with acceptance, the fact remains that the courts long have supplied that very link."). In discussing case law, for example, the opinion moves without comment from discussing one case addressing "otherwise compensable injury" to a second case addressing "compensable injury" generally. Id . at 274-76, 391 P.3d 773.

We will assume, for purposes of argument, that Brown does interpret ORS 656.005(7)(a) to hold that "compensable injury" means only accepted conditions. It is true that, as a general proposition, we assume that the legislature uses terms consistently. See, e.g. , Comcast , 363 Or. at 546, 423 P.3d 706 ("We ordinarily presume that the legislature intended words enacted as part of the same statute to have the same meaning throughout that statute."). Several factors, however, counsel against our assuming too quickly that ORS 656.245(1)(a) uses "[compensable] injury" the same way as ORS 656.005(7)(a).

First, the assumption of consistency is only an assumption. The text and context of a statute can refute that assumption. See Village at Main Street Phase II v. Dept.of Rev. , 356 Or. 164, 175, 339 P.3d 428 (2014) ("[T]he general assumption of consistency counsels us to assume that the legislature intended the same word to have the same meaning throughout related statutes unless something in the text or context of the statute suggests a contrary intention ." (Emphasis added.)).

Second, in the workers' compensation statutes the legislature itself has expressly recognized that the particular statutory context may require courts to give a different meaning even to a defined term. ORS 656.003 provides that the definitions in ORS 656.005 govern "[e]xcept where the context otherwise requires."

Third, and relatedly, Brown itself expressly warns that the workers' compensation statutes do not use terminology consistently. As the court stated:

"There is little that is 'plain' about this state's workers' compensation statutes, certainly with respect to the terminology at issue in this case. In fact, there appears to be a tendency on the part of the legislature to use a number of different terms in not altogether consistent fashion, sometimes treating them as essentially synonymous and at other times treating them as signifying different things."

361 Or. at 253, 391 P.3d 773 (followed by numerous examples). In a note that is particularly relevant to the meaning of "compensable injury," the court added:

"[S]ome of the terms themselves are reasonably capable of more than one meaning. The term 'injury,' for example, plausibly may refer either to an event or to a resulting condition."

Id . at 254, 391 P.3d 773. In Bundy v. NuStar GP, LLC , 362 Or. 282, 292-93, 407 P.3d 801 (2017), we reiterated that, based on Brown , "the meaning of the term ['injury'] in a particular provision must be determined by considering the relevant statutory context."

Fourth-and perhaps most importantly- Brown specifically reserved any decision regarding whether it had determined the meaning of "[compensable] injury" as that phrase is used in ORS 656.245. The court stated:

"As we have noted, the workers' compensation statutes expressly address the subject of the compensability of [diagnostic] medical services in ORS 656.245. This case does not involve that issue. In fact, it is the subject of ongoing litigation in other cases. See, e.g. , SAIF v. Carlos-Macias , 262 Or. App. 629, 325 P.3d 827, rev. pending (2014) (holding that such diagnostic medical services are compensable). Accordingly, we will express no opinion on the subject one way or the other * * *. Such medical services may or may not be compensable. Whether they are will depend on the careful construction of the relevant terms of the applicable statute in accordance with ordinary rules that apply to that task."

361 Or. at 282, 391 P.3d 773.

Thus, even if Brown was definitive on the question of what "compensable injury" means generally, the limits on the assumption of consistency and the holding in Brown itself counsel us to examine ORS 656.245(1) independently to see how it uses the term "[compensable] injury."

Accordingly, we turn to the specific phrasing of ORS 656.245(1). The first sentence of ORS 656.245(1)(a) mandates that an insurer must provide "medical services for conditions caused in material part by the [compensable] injury." That phrasing distinguishes "conditions"-in context, medical conditions that require "medical services"-from the "injury," which is the event that "caused" those medical conditions. That phrasing is inconsistent with an understanding that would equate "injury" with "condition,"

even if injury has that meaning in other provisions within the workers' compensation statutes. Furthermore, insurer's proposed reading of the sentence would transform the text into a requirement that an insurer provide "medical services for conditions caused *** the [accepted conditions]," functionally causing the sentence to refer only to consequential conditions. In short, "[compensable] injury" in the first sentence of ORS 656.245(1)(a) appears clearly to refer to the work accident and not to any resulting medical conditions, accepted or otherwise.

The second sentence of ORS 656.245(1)(a) also uses "[compensable] injury" in the same way. That sentence relates to consequential or combined conditions, and it requires the insurer to provide "those medical services directed to medical conditions caused in major part by the [compensable] injury." That text even more explicitly distinguishes "medical conditions," which require medical services, from "the injury," which again is the thing that "caused" the conditions. Thus, "injury" in that context again refers to the work accident and not to the resulting medical conditions.

That said, ORS 656.245(1)(a) is not consistent in its use of "[compensable] injury." The first sentence of ORS 656.245(1)(a) uses "the injury" twice, and the second time the term has a different meaning. Under the first sentence, an insurer must provide medical services "for such period as the nature of the injury or the process of the recovery requires." (Emphasis added.) That usage of "injury" there would necessarily seem to involve a medical condition. It would be difficult to make sense of a direction to provide medical services for a period of time that depends on "the nature of the work accident."

In short, ORS 656.245(1)(a) presents a situation where the same term-here, "injury"-is used in different ways, with apparently different meanings, within the same statutory provision. The phrase "medical services for conditions caused *** by the injury" uses "injury" to mean the workplace accident. The phrase "for such period as the nature of the injury *** requires" uses "injury" to mean the medical condition that resulted from the accident. We cannot choose one or the other. Rather than do violence to the statutory text by artificially imposing the same meaning on all uses of the term "injury," we seek to give effect to what the legislature actually intended.

In this particular case, we are concerned with what "injury" means in the phrase "medical services for conditions caused *** by the injury." Because that use of "injury" refers to the work accident, the text supports claimant.

We turn to the statutory context. Insurer contends that other provisions of the workers' compensation statutes show that the legislature used "compensable injury" to mean "accepted condition." For example, insurer notes that ORS 656.265(1)(a) requires a worker to give "[n]otice of an accident resulting in an injury," and therefore maintains that "injury" cannot mean "accident."

To the extent that insurer identifies other provisions that use the term "compensable injury" to mean an accepted condition, that does little to advance insurer's position, for reasons already noted. That broad contextual argument depends heavily on an assumption of terminological consistency in the workers' compensation statutes-an assumption that we cautioned against in Brown . The clear textual indicators of meaning in ORS 656.245(1)(a) itself cannot be disregarded because of other ways in which "compensable injury" is used throughout the workers' compensation code.

Claimant, for her part, relies on the original 1965 version of ORS 656.245(1)(a) as supporting her position. The context for interpreting a statute can include prior versions of the same statute. See, e.g. , State v. McNally , 361 Or. 314, 325, 392 P.3d 721 (2017) (so noting).

When first enacted in 1965, the statute provided:

"For every compensable injury, the direct responsibility employer or the department shall cause to be provided medical services for conditions resulting from the injury for such period as the nature of the injury or the process of the recovery requires, including such medical services as may be required after a determination of permanent disability."

Or. Laws 1965, ch. 285, § 23, codified at ORS 656.245(1) (1965).

The 1965 statute does not directly aid us, because it uses "injury" in the same conflicting senses as does the current statute. The insurer must provide "medical services for conditions resulting from the injury," again indicating that "injury" there means the work accident; the difference from today's text is the required causal relationship. At the same time, the statute also required those services to continue "for such period as the nature of the injury *** requires," indicating that "injury" there means the medical condition. We do note, however, that the 1965 statutes rarely use the term "condition" in any sense of the word. It is plausible, then, that "condition" and "injury" were being used interchangeably and have different meanings at different points. Insurer, for its part, asserts that amendments in 1990 and 1995 are additional context that support its position. It begins with the 1990 amendments, noting that the legislature adopted a requirement that an insurer issue notice of acceptance and specify what conditions are compensable. Or. Laws 1990, ch. 2, § 15, currently codified at ORS 656.262(6)(a). While that may be relevant to the question of what "compensable injury" means generally, it did not change how the word "injury" is used in the phrase "medical services for conditions caused * * * by the injury" in ORS 656.245(1)(a).

Insurer also points to the 1995 amendments, which specifically altered ORS 656.245(1)(a) in a way that insurer contends supports its construction. See Or. Laws 1995, ch. 332, § 25. As we will explain, however, the amendment relied on by insurer is unhelpful to insurer's position, while a second 1995 amendment that insurer did not address is positively harmful to it.

The change relied on by insurer was that the legislature added new text to subsection (4) of ORS 656.245. The relevant portion of subsection (4) provides that, when an insurer has contracted with a managed care organization, the insurer must provide medical services to those workers subject to the contract. The amendment then added:

"Workers subject to the contract include those who are receiving medical treatment for an accepted compensable injury***."

Or. Laws 1995, ch. 332, § 25.

Insurer reads that sentence as if it addressed the substantive medical services to be provided rather than identifying the class of workers subject to the contract, and it reads the open-ended word "include" as if it meant "include only." Based on that, insurer argues that workers subject to managed care organization contracts will only receive treatment for "accepted" conditions; insurer argues that it would be unreasonable to conclude that other workers should receive benefits for conditions that have not been accepted. But the premise of insurer's argument is questionable; an alternative reading of that amendment is that it was meant solely to govern the class of persons who would be eligible for services. We do not decide that question today, but because insurer's interpretation is not obviously correct, we decline to give it significant contextual weight regarding the meaning of ORS 656.245(1)(a).

Insurer notes, but does not address, a second 1995 change to ORS 656.245(1)(a), which added a second sentence. That new sentence provides:

"[F]or consequential and combined conditions described in ORS 656.005(7), the insurer or the self-insured employer shall cause to be provided only those medical services directed to medical conditions caused in major part by the injury."

We have already discussed this sentence. As we noted previously, an "injury" is something that "cause[s]" "medical conditions" that require "medical services." In other words, "injury" in this sentence also means the work accident, not the resulting medical conditions.

For that reason, the 1995 amendment provides context that is inconsistent with insurer's position. It shows that, at a time when the legislature had already created the "accepted condition" requirements, it affirmatively modified ORS 656.245(1)(a) to use "injury" to again refer to the work accident.

To sum up: When ORS 656.245(1)(a) states that "[F]or every compensable injury, the insurer *** shall cause to be provided medical services for conditions caused in material part by the injury," the "injury" is the work accident that caused the medical condition and resulted in the need for medical services. It does not mean medical conditions, and it is not limited to conditions that the insurer has accepted at the time that medical services are sought.

We have explained that our conclusion that "injury" means work accident is context-specific to exactly two uses in the first and second sentences of ORS 656.245(1)(a). It does not apply to the second use in the first sentence of ORS 656.245(1)(a). We do not decide or suggest that it applies to any other statute in the workers' compensation system.

The Court of Appeals and board decisions depended entirely on the contrary conclusion of law, that "compensable injury" in ORS 656.245(1)(a) means only "accepted conditions." Because those holdings were in error, we reverse. Accordingly, we remand to the board for such further proceedings as are appropriate.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Board for further proceedings.

      For simplicity in this opinion, we will use the term "insurer" to include a self-insured employer.

      The Court of Appeals has held that diagnostic services may be compensable even if the resulting diagnosis shows that the condition itself is not compensable. Counts v. International Paper Co. , 146 Or. App. 768, 770-72, 934 P.2d 526 (1997) ; Brooks v. D & R Timber , 55 Or. App. 688, 692, 639 P.2d 700 (1982). This court does not appear to have addressed the question.

      During oral argument, claimant suggested that her PTSD symptoms may not meet the definition of "condition" that the Court of Appeals approved in Young v. Hermiston Good Samaritan , 223 Or. App. 99, 104-05, 194 P.3d 857 (2008) (defining "condition" as "physical status of the body or one of its parts," while adding that "symptoms" are not a "condition" and are not compensable). However, insurer has not taken that position in the proceedings below or on review, so we do not address the question further.

      For example, Brown identified two different statutes that
      "explicitly equate[ ] the 'otherwise compensable injury' component of the combined condition claim with the 'accepted injury.' If, as we have concluded, the word 'injury' in this context means a medical condition, it necessarily follows that the statutory term 'accepted injury' means the accepted medical condition."
      Id . at 272-73, 391 P.3d 773.

      Brown noted that, in SAIF v. Sprague , 346 Or. 661, 217 P.3d 644 (2009), this court construed "compensable injury" to mean an accepted condition. 361 Or. at 275-76, 391 P.3d 773. Insurer maintains that Sprague is independent precedent supporting its position.
      We are not persuaded. While Sprague did involve whether ORS 656.245 (1)(a) required particular medical services for the claimant, its resolution of that issue turned entirely on the relationship that the services had to conditions that had already been accepted. See 346 Or. at 675, 217 P.3d 644 (expressly declining to opine on compensability of other medical condition). Because the court's analysis did not depend on whether "compensable injury" meant accepted conditions or the work accident, we hesitate to treat a passing statement in Sprague as controlling. See, e.g. , McDowell Welding & Pipefitting v. US Gypsum Co. , 345 Or. 272, 281, 193 P.3d 9 (2008) (when prior opinions "did not expressly consider the argument that plaintiff raises here," this court "hesitate[s] to give them controlling effect without examining the premises of plaintiff's argument more closely"); Cohens v. Virginia , 19 U.S. (6 Wheat) 264, 399, 5 L.Ed. 257 (1821) (Marshall, C.J.) ("[G]eneral expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision.").

      Stating that "[e]xamples are legion," the court identified the following:
      "ORS 656.005(7)(a)(A), for instance, sets out the elements of a consequential condition claim and expressly equates an 'injury or disease' with a 'condition,' as not even claimant contests. On the other hand, ORS 656.273(1) provides for compensation for a 'worsened condition[ ] resulting from the original injury,' signifying a possible distinction between the two terms. Still other statutes can be read either way. ORS 656.386(1)(b)(A), for example, refers to an employer's refusal to pay benefits because 'the injury or condition for which compensation is claimed is not compensable.' Even more ambiguous is ORS 656.308(1), which provides that, when a worker sustains a 'compensable injury,' the responsible employer remains obligated to pay benefits relating to 'the compensable condition,' unless the worker sustains a new 'compensable injury' involving the same 'condition.' In a similar vein, some workers' compensation statutes refer to acceptance of a 'claim' and specify a process for 'claim acceptance,' e.g. , ORS 656.262(6)(a). Other provisions within the workers' compensation statutes, however, refer to acceptance of an 'injury,' e.g. , ORS 656.262(7)(b), or acceptance of a 'condition,' e.g. , ORS 656.247(4)(b)."
      361 Or. at 253-54, 391 P.3d 773 (alteration in original).

      Consequential conditions are addressed in ORS 656.005(7)(a)(A), which provides that a condition may be compensable if a "compensable injury is the major contributing cause of the consequential condition."

      Insurer makes a separate contextual argument that focuses on the formal requirements a claimant must meet when seeking compensation for a "condition" that is either "new" or has been "omitted" from the original acceptance. See ORS 656.267(1) (must be "clearly request[ed]," with certain forms specifically not allowed); ORS 656.262(6)(d) (worker must give notice of any "incorrectly omitted" conditions in writing). Claimant counters that ORS 656.267(1) provides that a notice of acceptance is not required to identify every condition with specificity. Id . (insurer "is not required to accept each and every diagnosis or medical condition with particularity," but must reasonably apprise claimants and medical providers of "the nature of the compensable conditions").
      Those arguments do not go to the meaning of "injury" in ORS 656.245(1)(a). They go to questions regarding what constitutes a condition; whether a condition has been accepted or "omitted"; and whether a condition is "new." We noted earlier that the meaning of "condition" is not at issue before us. Accordingly, we do not decide whether claimant's PTSD symptoms constitute a "condition," nor whether those symptoms fall within the category of conditions accepted without particularity as suggested by ORS 656.267(1), nor whether they may be disqualified as a "new" or "omitted" condition because claimant may have failed to comply with the formal requirements of ORS 656.267.

      Claimant asserts that "compensable injury" cannot mean "accepted condition," because the concept of "accepted condition" did not exist at that time. Instead, what an insurer accepted or denied was a "claim." Former ORS 656.262(5) (1965). As we discuss later in the text, it was amendments in 1990 and 1995 that created the "accepted condition" requirement.
      Claimant's argument sweeps too broadly. It is not limited to how "injury" is used in the phrase "medical services for conditions caused *** by the injury" in ORS 656.245(1)(a). Claimant's argument is directed toward the entire definition of "compensable injury," both in ORS 656.005(7)(a) and in its use throughout the workers' compensation statutes. As a result, her argument necessarily implies that large swaths of Brown were incorrect. Yet claimant has not asked us to overrule Brown , nor has she identified any errors in Brown 's extensive discussion of how text, context, and case law shows that "compensable injury" means medical conditions and not work accidents. See 361 Or. at 255-72, 391 P.3d 773. She also has not addressed Brown 's (admittedly ambiguous) suggestions that "compensable injury," at least in general usage, is further limited to "accepted conditions." See id . at 272-77, 391 P.3d 773.

      The relevant portion of that statute states:
      "(6)(a) Written notice of acceptance or denial of the claim shall be furnished to the claimant by the insurer or self-insured employer within 60 days after the employer has notice or knowledge of the claim. ***
      "(b) The notice of acceptance shall:
      "(A) Specify what conditions are compensable."


text:
    SUMMERFIELD v. OREGON LIQUOR CONTROL COMMISSION
    A157108(S066377)
    Supreme Court of Oregon.
    May 2, 2019
    Review Allowed.


text:
    AKLES, Jerome Durrell v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A165999(S066511)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. C. M. H.
    A167950, (A168080), (S066607)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. M. B.
    A168443(S066601)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    DEPARTMENT OF HUMAN SERVICES v. M. L. K.
    A168264, (A168265), (S066613)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    DURHAM, David Raymond v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A163615(S066568)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. COX, Toby Leland
    A164537(S066597)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. ENRIQUEZ, Michael Jose
    A164713(S066499)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    HOOPER v. ROGUE VALLEY TRANSPORTATION DISTRICT
    A164769(S066542)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    LARSEN, John Sorn v. NOOTH
    A162167 (S066347)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. GROVER, Lonnie Alan
    A163466(S066518)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    LEECH, Steven C. v. TAYLOR
    A163524(S066448)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. HATFIELD, Jon Louie, Jr.
    A165159(S066561)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    MCMAIN, Gordon v. CAIN
    A164007(S066526)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. PARKS, Dechavien Jabbar
    A158552(S066498)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. PHAM, NGUYEN NGOC
    A161825(S066478)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. CASTILLO, Richard
    A164077(S066536)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE v. PULCIPHER, Andrew Frederic
    A165057(S066512)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    UNITED STATES of America, Plaintiff, v. Christopher Robert LAWRENCE, Defendant.
    United States of America, Plaintiff, v. Kelly David Ankeny, Sr., Defendant.
    SC S066187
    Supreme Court of Oregon, En Banc.
    May 23, 2019
    Elizabeth G. Daily, Assistant Federal Public Defender, Portland, for defendants.
    No appearance contra.
    WALTERS, C. J.
    In these consolidated cases, the United States Court of Appeals for the Ninth Circuit certified three questions to this court concerning how predicate Oregon convictions for first- and second-degree robbery should be treated for certain issues that arise under federal sentencing law. Those questions were:
    "1. Is Oregon first-degree robbery, [ORS] 164.415, divisible?[ ]
    "2. Is Oregon second-degree robbery, [ORS] 164.405, divisible?[ ]
    "3. Put another way, is jury unanimity (or concurrence) required as to a particular theory chosen from the listed subparagraphs of each statute?"
    This court accepted certification by order in November 2018. In January 2019, the United States Supreme Court decided Stokeling v. United States , 586 U.S. ----, 139 S.Ct. 544, 202 L.Ed.2d 512 (2019), which concerned a similar issue involving how to treat a predicate Florida robbery for federal sentencing purposes. Thereafter, defendant Lawrence successfully moved to dismiss his appeal in the Ninth Circuit, and the Ninth Circuit accordingly modified its certification order to the extent that its questions concerned defendant Lawrence's case, leaving only the Ankeny case and the second question and one aspect of the third question before us. On our own motion, we have re-evaluated the questions presented in light of the above-described developments. On reconsideration, we decline certification of the remaining questions, for several reasons.
    Before turning to our reasoning, we give a brief description of the underlying issues. In the Lawrence case, defendant raised an issue on appeal in the Ninth Circuit concerning whether the district court had correctly calculated his sentence, under the federal sentencing guidelines, when it determined that Lawrence's prior Oregon conviction for first-degree robbery constituted a "crime of violence" as defined by United States Sentencing Guidelines section 4B1.2(a). In the Ankeny case, defendant was sentenced under the Armed Career Criminal Act (ACCA), based in part on the district court's conclusion that his prior Oregon conviction for second-degree robbery was a "violent felony" under 18 USC section 924(e), and defendant appealed to the Ninth Circuit, raising an issue concerning the use of the prior Oregon conviction.
    The Ninth Circuit, in its certification to this court, explained that, to determine whether a defendant's prior conviction is a "crime of violence" under the federal sentencing guidelines or a "violent felony" under the ACCA, the court must first look to whether the elements of the Oregon offenses sufficiently match the elements of the "generic" crime of robbery. If a statute criminalizes a broader range of conduct than the "generic" crime, it is deemed "overbroad." And if a statute is deemed "overbroad," then the court next asks whether the statute is "divisible," that is, whether it contains multiple alternative elements that are functionally separate crimes, which is determined by assessing whether a jury must concur as to which alternative has been proved. If the statute is "divisible," then the court then must determine which alternative was proved to the jury; if that alternative falls within the "generic" crime, then the conviction may qualify as a "crime of violence" or a "violent felony" under the federal sentencing guidelines or the ACCA. The Ninth Circuit further explained that defendant Lawrence was arguing on appeal that Oregon's first-degree robbery statute was not divisible. It added in a footnote that the parties in the Ankeny case "concede that Robbery II is divisible" but "offer no substantive discussion" on that issue. The Ninth Circuit therefore sought clarification as to whether first- and second-degree robbery are divisible, and whether jury concurrence is required on the elements of those crimes that are charged and proved.
    When the United States Supreme Court decided Stokeling in January of this year, it appears to have significantly altered the legal landscape about how predicate robbery offenses are treated for purposes of federal sentencing. As noted, after that decision, the parties in Lawrence dismissed their appeal in the Ninth Circuit. Both parties in Ankeny also sought to have the Ninth Circuit withdraw its certified questions from this court, with the government taking the position that much of the Ninth Circuit's prior case law concluding that robbery statutes were "overbroad" was undermined by Stokeling , and Ankeny arguing that he had not raised the question of "divisibility" in his appeal to the Ninth Circuit but in fact had conceded that the second-degree robbery statute was divisible. The Ninth Circuit withdrew its certified questions insofar as they pertained to Lawrence and first-degree robbery, but it did not withdraw its questions insofar as they pertain to the Ankeny case and second-degree robbery. The Ninth Circuit maintained that its precedent remained good law after Stokeling and that a question remained as to whether Oregon's second-degree robbery statute was "divisible" and whether jury concurrence on particular elements of that statute was required.

      ORS 164.415 provides:
      "(1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 and the person:
      "(a) Is armed with a deadly weapon;
      "(b) Uses or attempts to use a dangerous weapon; or
      "(c) Causes or attempts to cause serious physical injury to any person.
      "(2) Robbery in the first degree is a Class A felony."

      ORS 164.405 provides:
      "(1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 and the person:
      "(a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or
      "(b) Is aided by another person actually present.
      "(2) Robbery in the second degree is a Class B felony."

   For several reasons, we conclude that the two questions that remain and affect the Ankeny case are not subject to review on certification. In Western Helicopter Services, Inc. v. Rogerson Aircraft Corp. , 311 Or. 361, 811 P.2d 627 (1991), this court discussed various nondiscretionary statutory factors, as well as discretionary factors, to be considered when deciding to accept certification of a question pursuant to ORS 28.200. Several of those factors weigh against this court addressing the remainder of the Ninth Circuit's certified questions in this case.

First, one of the statutory factors is whether the question presented is one of Oregon law. Id. at 365, 811 P.2d 627. The second certified question, whether Oregon's second-degree robbery statute is "divisible," involves a federal sentencing concept that does not turn exclusively on Oregon law.

Another factor, which we have described as "one of the most important factors-perhaps the most important one," id. at 366, 811 P.2d 627, is whether there exists Oregon precedent that addresses the certified question. Given that the only remaining aspect of the third question certified by the Ninth Circuit in this case concerns whether jury concurrence is required on particular elements of the second-degree robbery statute, we conclude that an Oregon Court of Appeals decision provides sufficient guidance as to what remains of that question. See State v. Gaines , 275 Or. App. 736, 365 P.3d 1103 (2015) (jury required to concur as to what theory of second-degree robbery has been proven).

On reconsideration, the Oregon Supreme Court declines to answer the certified questions.


text:
    STATE v. SANCHEZ-DIAZ, Efrain
    A164605 (S066505)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    TRAN v. STAN THE HOT WATER MAN
    A165790(S066493)
    Supreme Court of Oregon.
    May 2, 2019
    Review Denied.


text:
    STATE of Oregon, Plaintiff-Respondent, v. John David DELP, Defendant-Appellant.
    A160751
    Court of Appeals of Oregon.
    Submitted March 29, 2017. April 10, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.
   EGAN, C. J.

Defendant was convicted of 10 counts of encouraging child sexual abuse in the first degree, ORS 163.684, based on his guilty plea that, on five separate dates, he had "knowingly duplicated a visual recording of sexually explicit conduct involving a child while [he] was aware of and consciously disregarded the fact that the original creation of that visual recording involved child abuse." Because he had been sentenced for a felony sex crime twice before, the trial court sentenced him to life in prison without the possibility of release or parole. See ORS 137.719. Defendant appeals, asserting that his sentence is unconstitutionally disproportionate as applied to his circumstances under Article I, section 16, of the Oregon Constitution. We affirm. I. FACTS

We begin with the sentencing facts, which include defendant's prior and current convictions, as well as evidence of past instances of relevant uncharged misconduct. State v. Davidson , 360 Or. 370, 375, 380 P.3d 963 (2016) ("In evaluating disproportionality challenges to criminal sentences, it is appropriate for a court to consider any prior conviction, as well as misconduct that did not result in convictions."); State v. Rodriguez/Buck , 347 Or. 46, 78, 217 P.3d 659 (2009) ("Traditional understandings of proportionality, as well as this court's cases, require us to consider whether a defendant is a repeat offender by considering previous criminal convictions and whether there is evidence of multiple instances of uncharged wrongful conduct."). We take those facts from the record, and from the state's sentencing memorandum, which, unless otherwise noted, defendant does not dispute.

A. Prior Convictions

In July 2004, defendant was convicted in the United States District Court for the District of Oregon of one count of possession of child pornography, 18 USC section 2252 (a)(5), and sentenced to 60 months' incarceration. Three other counts were dismissed by motion of the government. The record discloses no further details about that offense.

On September 14, 2004, following a stipulated bench trial, defendant was convicted in Oregon circuit court of two counts of first-degree sodomy, one count of first-degree sexual abuse, and three counts of first-degree encouraging child sexual abuse. We described the facts underlying those convictions in State v. Delp , 218 Or. App. 17, 178 P.3d 259, rev. den. , 345 Or. 317, 195 P.3d 65 (2008), as follows.

In March 2000, an FBI agent, posing as a 14-year-old girl, engaged in an online chat, during which defendant asked the purported 14-year-old "whether she had 'ever been with an older man,' suggested that he could travel to Ohio to meet her in person, indicated that he had previously had sexual intercourse with a 12-year-old girl in Indiana, and said that he was planning to have sexual intercourse with a nine-year-old girl who lived about an hour from him." Id. at 19, 178 P.3d 259.

He also sent her pictures of himself, including two nude photographs, and gave his email address. The FBI traced the conversation to defendant and obtained a warrant to search defendant's home. Id. at 20, 178 P.3d 259. During the search, defendant directed the agents to a computer disk, which contained numerous images of child pornography. Id . During the investigation that followed, defendant also confessed to performing sexual acts on his girlfriend's one-year-old child.

Defendant appealed his convictions, contending, among other things, that the state did not provide sufficient corroborating evidence of defendant's confession to the sodomy and sexual abuse counts, as required by ORS 136.425(1) (2003).

Id. at 27, 178 P.3d 259. We agreed and reversed those convictions. Id . at 29, 178 P.3d 259. We affirmed defendant's convictions for three counts of first-degree encouraging child sexual abuse, and he was ultimately sentenced to a total of 119 months' incarceration on those counts. He served that sentence and was released to post-prison supervision in May 2014.

B. Current Convictions and Uncharged Misconduct

Google reported to the National Center for Missing and Exploited Children that child pornography had been uploaded to Google Drive on November 8, 16, and 22, 2014, and January 24, 2015, from an account associated with defendant. The images depicted infants, toddlers, and prepubescent boys and girls being sexually abused and molested by adults. Additionally, Microsoft reported that a user associated with defendant's email address uploaded child pornography to the user's SkyDrive/One Drive account on January 18, 2015, and January 24, 2015. Those child pornography images depicted prepubescent boys and girls being sexually abused and molested by adults, including vaginal, oral, and anal penetration.

During the investigation that ensued, defendant admitted (among other conduct discussed below) to uploading and duplicating child pornography into the Google and Microsoft cloud services, and he was charged with 10 counts of first-degree encouraging child sexual abuse. He waived a jury trial and pleaded guilty to those charges, admitting that, on five separate dates-November 8, 2014, November 16, 2014, November 22, 2014, January 18, 2015, and January 24, 2015-he unlawfully and knowingly duplicated a visual recording of sexually explicit conduct involving a child while he was aware of and consciously disregarded the fact that the original creation of the recording involved child abuse. See ORS 163.684. He also admitted to two upward departure factors-persistent involvement in similar offenses and multiple victims/incidents.

As part of defendant's plea agreement, the state agreed not to charge him with any additional crimes based on information it had obtained during its investigation. However, the parties also agreed that the state could present that information for the court's consideration at sentencing. Accordingly, the state submitted a sentencing memorandum describing the results of its investigation. Defendant also submitted a sentencing memorandum. Except as noted, defendant did not dispute the state's description of the facts.

The investigation revealed that defendant had uploaded a total of 536 images and videos of child pornography in his Google and Microsoft cloud storage services, including depictions of children engaged in acts of sexually explicit conduct with men, women, other children, and dogs. According to the National Center, 77 of the children depicted in those files were known and identified victims who were rescued. Defendant's smartphone contained 467 photos and videos of child pornography, including images of infants and toddlers being sexually abused. Sixty-eight of those images depict children who were identified and rescued.

During a recorded interview, defendant admitted that he had uploaded, copied, and distributed child pornography using his smartphone through email, online storage devices, and messaging applications, engaging in that activity at various locations in Marion County. He further stated that he viewed the child pornography for his own sexual arousal and masturbation and that he talked to other people online about his interest in child pornography.

Further, defendant "admitted to communicating with people he believed may be engaged in contact sexual abuse of children"; he also communicated with people he believed to be minor girls and sometimes requested and received sexually explicit images from them, although he denied ever meeting them in person.

In addition, he admitted to participating in internet chat rooms and using a text messaging application on his smartphone to communicate with other people to exchange child pornography. The state's memorandum included a transcript from one of those exchanges in which a woman describes to defendant how she sexually abused two toddlers while their father filmed it. The memorandum also described defendant's text communications with a 17-year-old girl living in Georgia and, later, Florida, in which defendant requested and induced the minor to produce and send to defendant "several dozens of sexually explicit images of herself." Defendant also sent her sexually explicit images of himself.

At the sentencing hearing, defendant asserted that a sentence of life without the possibility of release or parole-or "true life"-under ORS 137.719(1) was unconstitutionally disproportionate as applied to him under Article I, section 16. Relying on our opinion in State v. Davidson , 271 Or. App. 719, 745, 353 P.3d 2 (2015) (Davidson I ), aff'd , 360 Or. 370, 380 P.3d 963 (2016) (Davidson II ), he argued that, because his crimes "exclusively involved the duplication of existing child pornography" and not crimes involving force or violence, under Davidson I , a true-life sentence in his circumstances would violate Article I, section 16. The trial court rejected that argument, explaining, in part:

"This is not a defendant who's unaware of the harmfulness, the criminality of the images that he was possessing and uploading. He had ample opportunity to be aware of that in his prior criminal processes. It's not a defendant who's youthful or otherwise would seem likely to benefit from some opportunity at treatment. It's not a defendant whose only danger lies in viewing and therefore promoting the production of abusive images.
"I do find on this record that the defendant also constitutes a threat of contact pedophilia. Certainly the direct messaging of people whom he believed to be minors is itself significantly harmful in a way that's different from and more contact-like than the child pornography offenses themselves. Soliciting child pornography from those people who he perceived to be minors; perhaps he's done worse.
"Certainly this Court finds that he is a significant threat of contact, pedophilic crimes. In these circumstances * * * the presumptive sentence of true life is just and appropriate. It's * * * really a matter of the safety of the community. It's the only sentence that will provide the security, the knowledge that the Defendant won't be able to make himself that sort of threat to the children in our community in the future."

Accordingly, as noted, the court imposed concurrent sentences of life without the possibility of release or parole on each count of conviction.

II. ANALYSIS

On appeal, defendant reprises his argument that his sentence is unconstitutionally disproportionate as applied to him under Article I, section 16, for essentially the same reasons he articulated below. As we explain, we reject that argument and affirm the trial court.

Article I, section 16, provides, in part, that "all penalties shall be proportioned to the offense." In evaluating a particular sentence for compliance with Article I, section 16, the foundational question is whether the length of the sentence "shocks the moral sense" of reasonable people. State v. Wheeler , 343 Or. 652, 668, 175 P.3d 438 (2007). Because the legislature has primary authority to determine the gravity of an offense and the appropriate length of punishment, a court may say that a particular punishment is constitutionally disproportionate only in those "rare circumstances" where the legislature has exceeded that authority. Id. at 670, 175 P.3d 438.

The court considers three factors when assessing an as-applied proportionality challenge: "(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant." Rodriguez/Buck , 347 Or. at 58, 217 P.3d 659. However, there is a nuance to that three-factor test where, as here, the sentence is imposed pursuant to a recidivism statute-that is, a statute that establishes enhanced sentences for repeat offenders. State v. Althouse , 359 Or. 668, 684, 375 P.3d 475 (2016). In that circumstance, "the first and third of those factors overlap in comparing the severity of the penalty and the gravity of the crimes that gave rise to the repeat offender sentence." Id . at 685, 375 P.3d 475 ; Davidson II , 360 Or. at 382, 380 P.3d 963 (recognizing and applying that standard). In explaining its reasoning, the Supreme Court in Althouse reiterated that

" '[h]abitual criminal [statutes] are based upon the belief that the criminal, as well as the crime, is a material factor to be considered in fixing the sentence. If the criminal is a menace to the community, his sentence should be aimed at offering the most protection to the community, regardless of the relative innocuousness of the particular crime for which he is now convicted.' "

359 Or. at 684, 375 P.3d 475 (quoting Tuel v. Gladden , 234 Or. 1, 6, 379 P.2d 553 (1963) (brackets in Althouse )). Whether an enhanced sentence under a recidivism statute for repeat sexual offenders "shocks the moral sense" thus " 'depend[s] upon the seriousness of repetitive sexual conduct of th[e] kind [punished by the statute] and the danger that it forecasts for others unless the defendant is segregated from society.' " Id . at 685, 375 P.3d 475 (quoting Jensen v. Gladden , 231 Or. 141, 144-45, 372 P.2d 183 (1962) (second and third brackets in Althouse )).

We analyze the constitutionality of defendant's sentence according to that framework.

A. First and Third Rodriguez/Buck Factors

As noted, the first and third Rodriguez/Buck factors essentially "coalesce" when considering an as-applied challenge to a sentence under ORS 137.719(1), meaning that we assess the severity of the penalty against the gravity of the current offense and the gravity of the defendant's criminal history, rather than focusing on the gravity of the last offense that the defendant committed. Althouse , 359 Or. at 686, 375 P.3d 475. That includes the "specific circumstances of the charged and uncharged offenses" that comprise that history. Id.

As he did below, defendant argues that, because his offenses consisted entirely of possessing and duplicating images of child pornography, not "forcible or violent" crimes or ones that involve "directly touching raping or sodomizing another person," they are less serious than other crimes for which a presumptive life sentence applies under the statute or other cases where the court has found the sentence to be proportionate. He also argues that, had the statute not applied, he would have been subject to a much lesser presumptive sentence under the sentencing guidelines, 41 to 45 months for each count. Accordingly, in defendant's view, the severity of a true life sentence is disproportionate to the gravity of his crimes. We disagree with defendant's assessment, for several reasons.

First , defendant minimizes the severity of his crimes of first-degree encouraging child sexual abuse, a Class B felony. The "use" of child pornographic materials "necessarily involve[s] the harming of a child." State v. Stoneman , 323 Or. 536, 550, 920 P.2d 535 (1996). Indeed, "each duplication of the visual recording constitutes a revictimization of the child depicted." State v. Reeves , 250 Or. App. 294, 310-11, 280 P.3d 994, rev. den. , 352 Or. 565, 291 P.3d 737 (2012) (internal quotation marks and brackets omitted). Thus, in State v. Parker , 259 Or. App. 547, 550-51, 314 P.3d 980 (2013), rev. den. , 355 Or. 380, 328 P.3d 696 (2014), we rejected the defendant's argument that the conduct of downloading child pornography lies on the "less severe" end of the spectrum of conduct addressed within ORS 163.684, emphasizing that the crime of first-degree encouraging child sexual abuse is "inextricably and irreversibly tied to the sexual abuse of vulnerable children." Significantly, we also rejected the theory-as defendant seems to be arguing here-that the severity of the crime is mitigated by an absence of physical harm, noting that the crime is directed toward particularly vulnerable victims, that is, "the children who are being sexually abused and whose images are duplicated for sexual gratification." Id . at 551, 314 P.3d 980.

As the state described it, the child pornography images underlying the 10 charges to which defendant pleaded guilty were "beyond horrifying," showing children "being raped by adults *** [and] children being forced to do sexual[ ] things to each other, being directed by other offenders within the photos themselves." Defendant does not contest that description. Moreover in addition to those counts, the undisputed evidence establishes that defendant downloaded hundreds of other photos and videos of child pornography, which included images of infants and toddlers being abused by adults and depictions of bestiality involving children. Many of the children shown in the photos and videos were identified and known victims. And, all of the children depicted suffered harm from defendant's conduct in downloading those images.

Second , defendant fails to seriously confront his extensive history of other conduct targeted to the sexual exploitation of children-a factor that is of "considerable significance" given that he was sentenced pursuant to a recidivism statute. State v. Sokell , 360 Or. 392, 398, 380 P.3d 975 (2016). Defendant was previously convicted in federal court of possession of child pornography and three counts of first-degree encouraging child sexual abuse in state court. Defendant was investigated for the latter crimes after he communicated online with a person he believed to be a 14-year-old girl, suggested that he could travel to Ohio to meet her in person, indicated that he had previously had sexual intercourse with other young girls, and sent her nude pictures of himself. Delp I , 218 Or. App. at 19, 178 P.3d 259.

Moreover, in the course of the investigation that led to the present charges, defendant admitted to participating in internet chat rooms and otherwise communicating with other people to talk about and exchange child pornography-including communicating with people he "believed may be engaged in contact sexual abuse of children." In one such instance, defendant and a woman exchanged text messages describing the woman's sexual abuse of two young children, while another adult filmed the abuse. Defendant also communicated with people he believed to be minor girls and sometimes requested and received sexually explicit images from those girls, including a girl living in Florida, who, at least during some of their exchanges, was under the age of 18. That history reflects that defendant poses a significant danger to children.

Third , defendant's criminal history of exploitive and sometimes predatory behavior is long standing, beginning in 2000, and lesser criminal sanctions have not deterred him. He committed his current offenses for first-degree encouraging child sexual abuse within months after being released from custody after serving a lengthy prison sentence for the same offenses. He was on post-prison supervision at the time and was prohibited from using the internet or possessing any device capable of accessing the internet. Nonetheless, he used his cell phone to access and upload child pornography, talk with other people online about child pornography, and exchange sexually explicit images with minor girls through email. Thus, he had opportunities to reform his criminal behavior, but did not. See Davidson II , 360 Or. at 387, 380 P.3d 963 ("[O]ne of the purposes of statutes that provide enhanced penalties for repeat offenders is to recognize that some offenders simply are not deterred by criminal sanctions and such people likely will continue to re-offend if released from confinement."); Althouse , 359 Or. at 687-88, 375 P.3d 475 ("[A]n inability to reform one's conduct despite repeated opportunities to do so * * * can justify the legislature's decision to impose a life sentence without the possibility of parole.").

Finally, we disagree with defendant that the facts in this case are like Davidson and therefore compels the conclusion that his sentence is disproportionate. In that case, the defendant was convicted of two counts of public indecency, ORS 163.465, for exposing himself at a public park. Davidson II , 360 Or. at 372, 380 P.3d 963. He received consecutive true-life sentences under ORS 137.719(1) because he had two prior felony convictions for public indecency. Id. The Supreme Court concluded that such a severe sentence violated under Article I, section 16, as applied to the defendant. Id.

In analyzing the first and third Rodriguez/Buck factors under the Althouse construct, the Supreme Court noted that the crime of public decency standing alone is a misdemeanor, which merits, at most, up to one year of incarceration. Id. at 385, 380 P.3d 963. Here, by contrast, the crime at issue is a Class B felony, which carries a maximum incarceration term of 10 years. ORS 161.605. Most significantly to our analysis here, the court focused on the type of harm that the defendant posed, given his criminal history. The court emphasized that, although that history indicated that the defendant was "highly resistive to reform," nothing suggested that he "prey[ed] on children," that he "has specifically targeted children to observe his [public indecency] acts, or that he has committed such acts in the course of or in furtherance of other crimes that target children, as was the circumstance in Althouse ." Id . at 386, 380 P.3d 963. The court also observed that the defendant's history "did not include sexual offenses that entailed physical contact with victims or that appeared to specifically target child victims ." Id . at 387, 380 P.3d 963 (emphasis added). Thus, considering the "seriousness of the repetitive sexual conduct" involved and "the danger it forecast for others," the court concluded that the severe penalty imposed-life in prison without the possibility of parole-fell outside the limits of what Article I, section 16, allowed in the circumstances.

Here, by contrast, the entirety of defendant's crimes and criminal history, including his history of uncharged criminal misconduct, reflect a pattern of repetitive sexual behavior directly targeting child victims. Some of his conduct also appeared to be in furtherance of other crimes that targeted children-specifically, in the online communications that led to his convictions in Delp I , defendant indicated that he wanted to meet the minor child in person to commit sexual acts against her, suggesting that he had done so previously. Those circumstances, combined with the fact that lesser sanctions have not deterred defendant, and the seriousness of the harm generated by the use of child pornography, suggest that, unlike in Davidson II , defendant here poses a significant danger to the public, particularly children, if he is not confined. Accordingly-being very mindful that a sentence of life without the possibility of parole is the most severe penalty that can be imposed aside from death-we conclude that the first and third Rodriguez/Buck factors support the constitutionality of defendant's sentence.

B. Second Rodriguez/Buck factor

We turn to the second factor-a comparison of the penalties imposed for related offenses. See Rodriguez/Buck , 347 Or. at 63-65, 217 P.3d 659. As to that factor, defendant argues that "there are combinations of sex crimes that do not trigger the application of the recidivist statute that are much more severe than the combination of crimes for which defendant received a true-life sentence," thus suggesting that his sentence is disproportionate. The Supreme Court rejected the identical argument in Althouse , explaining:

"If *** defendant's sentence is constitutionally proportionate as applied to his criminal history, it is difficult to see how it advances his as-applied challenge to his sentence to argue that the legislature also could have imposed a life sentence on others who commit additional sex crimes. *** Beyond that, defendant's argument assumes a proposition that this court has never suggested-that there must be a perfect proportionality among the sentences for all related offenses before an individual sentence will be proportioned to the offense within the meaning of Article I, section 16."

359 Or. at 691-92, 375 P.3d 475. He also briefly argues that his sentence is disproportionate because it is more severe than the presumptive sentence for "the most serious crimes," such as attempted aggravated murder and several first-degree crimes, such as manslaughter, assault, kidnapping, rape, sodomy, sexual penetration, and arson, when committed by an offender with an extensive criminal history. However, he does not explain why those crimes are properly considered in the second-factor analysis as "related" offenses. See Davidson II , 360 Or. at 388, 380 P.3d 963 (in applying the second Rodriguez/Buck factor, we "consider the penalties imposed for other crimes that have similar characteristics to the crime at issue " (emphasis added)); Rodriguez/Buck , 347 Or. at 64, 217 P.3d 659 (discouraging courts from "roam[ing] freely through the criminal code, deciding which crimes are more or less serious than others," because that is primarily the province of the legislature). Thus, the second factor also supports our conclusion that defendant's sentence is not constitutionally disproportionate.

III. CONCLUSION

Given defendant's extensive history of sexually exploiting children, involving a multitude of victims who were harmed by his conduct, and the danger that defendant poses to the public by his repetitive sexual behavior, we conclude that this is not one of those rare cases in which the legislatively mandated repeat offender sentence violates Article I, section 16.

Affirmed.

      Encouraging child sexual abuse in the first degree, a Class B felony, is defined in ORS 163.684 :
      "(1) A person commits the crime of encouraging child sexual abuse in the first degree if the person:
      "(a)(A) Knowingly develops, duplicates, publishes, prints, disseminates, exchanges, displays, finances, attempts to finance or sells a visual recording of sexually explicit conduct involving a child or knowingly possesses, accesses or views such a visual recording with the intent to develop, duplicate, publish, print, disseminate, exchange, display or sell it; or
      "(B) Knowingly brings into this state, or causes to be brought or sent into this state, for sale or distribution, a visual recording of sexually explicit conduct involving a child; and
      "(b) Knows or is aware of and consciously disregards the fact that creation of the visual recording of sexually explicit conduct involved child abuse."

      ORS 137.719(1) provides that "[t]he presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence." ORS 137.719(2) allows the court to instead impose a sentence under the sentencing guidelines, "based upon findings of substantial and compelling reasons"; the court declined to do that here.
      Defendant was sentenced to life imprisonment without the possibility of release or parole on each of his 10 convictions, to be served concurrently. For ease of discussion-and because it does not affect the analysis-we refer to defendant's sentences in the singular in this opinion.

      Defendant also contends that his sentence is unconstitutionally disproportionate under the Eighth Amendment to the United States Constitution. However, as the state correctly points out, defendant did not preserve that argument before the trial court. Nor does he assert on appeal that we should exercise our discretion to review it as plain error. Accordingly, we do not address that question. ORAP 5.45(1).

      Specifically, defendant confessed to the following:
      "While defendant was in his house, defendant had sexual conversations over the Internet with strangers. Beginning in January 2000, as he was typing on his computer during these online conversations, defendant exposed himself to his girlfriend's child, placed the child's hands on his penis, and inserted his penis into her mouth. That type of conduct occurred on four separate occasions, most recently on March 26, 2000. On that occasion, defendant was again using his computer and ejaculated into a pink towel after removing his penis from the child's mouth. Defendant further confessed that he had rubbed the child's pubic area to stimulate her and that, while changing the child's diaper, defendant had licked her pubic area for approximately two minutes."
      Delp , 218 Or. App. at 20, 178 P.3d 259.

      At the time of defendant's trial, ORS 136.425(1) provided, in part, that a confession alone is not "sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed." In 2009, the legislature amended ORS 136.425, and enacted what became ORS 136.427, to provide an exception to that rule when, among other requirements, the defendant is charged with a sex crime, the victim is a vulnerable person, the victim is incompetent to testify, and the court finds that there is "sufficient evidence to establish the trustworthiness of the confession." See Or. Laws 2009, ch. 875.

      The trial court declined to view the images, which the state had available at sentencing on a secure iPad, and they are not part of the record. We take those descriptions from the state's sentencing memorandum, which, as noted below, defendant does not dispute.

      Defendant contended below that the court should not give weight to those two incidents because (1) there was no evidence that what the first woman described in her text message was true, and (2) "the alleged 17 year old claimed to be a college student who by her account turned 18 years old during the communication." Defendant acknowledged, however, that some of the images had been exchanged before the girl turned 18.

      There is no dispute that the statutory predicates for a true-life sentence under ORS 137.719(1) were met.

      The court also rejected defendant's alternative argument that the court should impose a downward departure sentence based on two mitigating factors-(1) that the predicate convictions were close in time and no additional criminal conduct occurred between sentencing on the first and second predicate offenses, and (2) defendant's cooperation with the investigation.

      Defendant suggests that the facts surrounding his first-degree sodomy and first-degree sexual abuse convictions are not properly part of his criminal history for this purpose because those convictions were overturned on appeal in Delp I . The state does not dispute that assertion; accordingly, we do not include those facts in our analysis.
      However, we note that defendant's convictions were reversed because, at the time, ORS 136.425 (2003) prohibited a conviction based on a confession alone, and there was insufficient evidence to corroborate defendant's confession to the crimes. However, ORS 136.425 (2003) did not (and does not now) prohibit the use in evidence of such a confession, as it does explicitly, in the same statute, with regard to the use of a confession obtained under fear caused by threat. See ORS 136.425 (2003) ("A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the defendant when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant the conviction of the defendant without some other proof that the crime has been committed."). See also ORS 136.425(1), (2) (maintaining that distinction).

      Defendant does not acknowledge the overlay to the Rodriguez/Buck factors articulated in Althouse and Davidson II , which were decided after he filed his brief.

      Those crimes involved the defendant masturbating in public. Davidson II , 360 Or. at 373, 380 P.3d 963.

      As noted, defendant focuses on our analysis in Davidson I . We, of course, consider defendant's argument in light of the Supreme Court's analysis in Davidson II , which applies Althouse 's framework for evaluating a defendant's criminal history in the context of a recidivist statute.

      As noted, defendant also argues that his sentence is disproportionate when compared to the 41- to 45-month presumptive sentence for the crime under the sentencing guidelines. To the extent that that is even relevant in the context of a recidivist statute, as the state points out, each count involved a separate victim; therefore the court could have imposed consecutive sentences totally 450 months. Moreover, defendant admitted to the existence of two upward departure factors, which would support a total sentence of 900 months' incarceration, or 75 years.