Brad Garber’s Case Law Update – August 17th, 2007

On this date: Davy Crockett was born in 1786. In 1892, Mae West was born. Actor Robert DeNiro was born in 1943. Belinda Carlisle (“GoGo’s”) was born in 1958. In 1960, actor Sean Penn was born. In 1846, the United States took over Los Angeles. The first ascent of Mt Rainier was in 1870. In 1933, Lou Gehrig broke a record by playing in his 1,308th straight game. The Beatles replaced Peter Best with Ringo Starr in 1962. Lee Trevino hit his first hole-in-one, in 1973.

Kristian R. Grinstead, 59 Van Natta 1930 (2007)

(Order on Remand)

The Court of Appeals sent this one back to the Board. The Board had previously affirmed an Order that dismissed Claimant’s hearing request. In doing so, the Board applied an “abuse of discretion” standard in reviewing the ALJ’s decision that a postponement of the scheduled hearing was not justified because Claimant’s explanation did not constitute “extraordinary circumstances.” The Court of Appeals determined that the ALJ’s decision could not be “discretionary,” under OAR 438-006-0071(2) and that it was error, therefore, to apply an “abuse of discretion” standard of review. The Court remanded the case for a determination whether “extraordinary circumstances” justified postponement of the hearing.

Claimant fired her first attorney, just prior to a May 2004 hearing. A second hearing was scheduled for October 12, 2004. Notice was sent to Claimant at her last known address in Ohio. On September 25, Claimant signed a retainer agreement with a new attorney. By letter dated October 4, 2004, Claimant’s new attorney sent a discovery request to the insurer. The October 12 hearing convened, as scheduled. Neither Claimant nor her new attorney showed up at the hearing, and defense counsel made a motion to dismiss, which was granted. The Order of Dismissal advised Claimant that she had an opportunity to set aside the dismissal if she could show “good cause” for her failure to appear at the hearing.

Claimant’s attorney had excuses for his failure to appear at the October 12 hearing (e.g., his legal assistant did not notify him of the hearing date), but the Board did not consider the excuses to constitute “extraordinary circumstances,” sufficient to justify a reinstatement of the request for hearing. Affirmed, again

Rick E. Green, 59 Van Natta 1956 (2007)

(Order on Reconsideration)

In its original order, the Board reversed the portion of the ALJ’s order that upheld AIG Claim Services’ (AIG’s) compensability denial and Sedgwick James Claims Management’s (Sedgwick’s) responsibility denial for Claimant’s occupational disease claim for an L4-5 disc condition. The Board awarded an assessed fee of $1,000 to Claimant’s attorney, payable by Sedgwick, for services at hearing and prevailing over the responsibility denial. It awarded an assessed a fee of $5,500 to Claimant’s attorney, payable by AIG, for prevailing over AIG’s compensability denial. AIG requested reconsideration of the attorney fee. It’s theory was recorded, as follows:

“On reconsideration, AIG contends that the $5,500 assessed attorney fee for services at hearing and on review regarding the compensability issue should be reduced by half because claimant prevailed only on his ‘occupational disease’ theory of compensability and did not also prevail on his ‘injury’ theory of compensability. Because claimant only prevailed on one of the two theories of compensability that he presented, AIG contended that the assessed fee should be reduced by half.”

The Board astutely noted, “AIG cites no support for this contention and we find none.” Interestingly, while Sedgwick was ultimately found responsible for Claimant’s L4-5 disc condition, it never denied compensability. Only AIG did that. So, because Claimant established the compensability of his claim, AIG (which denied compensability, as well as responsibility) was assessed the majority of the assessed fee.

Affirmed

Sedgwick CMS v. Jones, H05008; A129373 (August 15, 2007)

Question: “Is a new modified van a ‘medical service’ under ORS 656.245?”

Answer: “Yes.”

Brad G Garber
Wallace, Klor & Mann, P.C.
Oregon Bar 1987
US District Court 1988
Washington Bar 1993
US Ninth Circuit Court of Appeals 2000