Brad Garber’s Case Law Update – June 19, 2007

On this date: Canadian big band leader, Guy Lombardo, was born in 1902. In 1903, Henry Louis (“Lou”) Gehrig, 1st baseman for the Yankees, was born. Lester Flatt (“Flatt & Scruggs”) was born in 1914. In 1947, author Salman Rushdie was born. Ann Wilson, of “Heart,” was born in 1951. In 1961, Paula Abdul was born. The first baseball game was played, between the NY Nines and the Knickerbockers, in 1846. Father’s Day was celebrated for the first time, in 1910, in Spokane, WA. Hailstones killed 200 people, in 1932, in Hunan Province, China. In 1961, the US Supreme Court struck down a provision in Maryland’s state constitution that required state office holders to believe in God. Muhammad Ali was convicted for refusing induction into the US Army, in 1967.

David M. Lane, 59 Van Natta 1434 (2007)

(ALJ Fulsher)

Claimant requested review of the ALJ’s order that upheld SAIF’s denial of his injury claim. In upholding SAIF’s denial, the ALJ could not conclude that Claimant’s account of his injury was accurate or reliable. Because the supporting medical opinions relied on Claimant’s history, their opinions were determined to not be persuasive. With regard to burden of proof, the Board observed:

“Claimant has the burden of proving the compensability of an injury. ORS 656.266. Legal causation is established by showing that claimant engaged in potentially causative work activities; whether those work activities caused claimant’s condition is a question of medical causation.  Cai Ling Huang, 55 Van Natta 3445, 3448 (2003).”

During his testimony, Claimant was confused, flustered, and could not remember much. The ALJ concluded that inconsistencies in the record, and Claimant’s difficulty in remembering things, cast sufficient doubt on whether an injury actually occurred. Because of that, the ALJ found that Claimant did not prove legal causation. The medical opinions were, therefore, not persuasive. Affirmed

Richard R. Pate, 59 Van Natta 1444 (2007)

(ALJ Wren)

The facts read like the introduction to a movie screenplay… …

“When claimant was a young boy, his family kept an ex-cavalry horse in their back yard. That horse died before claimant was old enough to saddle it by himself, but his father later brought a quarter horse and a Shetland pony home for claimant and his brother. Those horses lived in claimant’s back yard, where he cared for the quarter horse.

“After claimant graduated from high school, he joined the Navy. While stationed in Morocco, he had the opportunity to ride rental horses in intramural competitions. Claimant also found opportunities to ride horses while he was stationed in Spain and Cuba. His affection for horses continued after leaving the Navy. Later, in the late 1980’s and early ‘90’s, he and his wife provided two horses for their daughters.”

And on, and on, and on… … .is this “National Velvet?”

Anyway, Claimant was injured while pulling a bale of alfalfa with a hay hook. The hook ripped out of a bale he was pulling on, and he fell backwards, approximately 15 feet, onto a concrete floor. Both of his legs were fractured in multiple locations. He filed a claim for benefits with a non-complying employer. Sedgwick CMS denied the claim on behalf of the NCE, on the ground that Claimant was not a subject employee.

After hearing, the ALJ found that Claimant was, indeed, a subject worker, and the employer was a non-complying employer. Claimant’s attorney was awarded $11,000. On appeal, the NCE and Sedgwick argued that the NCE did not have the right to control Claimant’s work activities, and that the relationship was more akin to that of a partnership or contractor/independent contractor relationship. In addition, they contended that the attorney fee was excessive.

The focus was on the amount of direction and control that the NCE had over Claimant’s work activities. In NCE cases, this is the factual focus. Under ORS 670.600(4), an independent contractor is not a subject worker. The analysis does not stop there, however. Even if someone has a subcontractor’s license, he or she may still be a subject worker, under the Act, depending on the “right to control” test. In this case, the NCE was determined to have significant direction and control over Claimant’s daily work activities. Affirmed

Anthony D. Cayton, 59 Van Natta 1455 (2007)

(ALJ Mills)

Claimant appealed from an order that denied a request for penalties and fees for alleged unreasonable claim processing. Claimant was awarded scheduled PPD, in the amount of 82%, per hand, for bilateral Raynaud’s syndrome. The award was made on June 26, 2006. On July 25, 2006, Claimant filed a request for lump sum payment. By virtue of the 1174 application form, the insurer had 14 days to respond to the lump sum payment request. The insurer did not respond. Claimant filed a request for hearing on August 22, 2006. On August 30, the lump sum payment was made.

The Board, in affirming the ALJ’s denial of Claimant’s request for penalties and fees, concluded as follows:

“Here, claimant was awarded PPD via Order on Reconsideration. [citation omitted] Within 5 days of that order, claimant requested payment of his PPD award in a lump sum. In doing so, he waived his right to appeal the PPD award. Yet, when claimant filed his ‘lump sum’ application, the insurer was still within its 30-day statutory right to appeal the Order on Reconsideration’s PPD award pursuant to ORS 656.268(6)(g). Therefore, because the PPD award had not become final by operation of law, nor had the insurer waived its right to appeal the adequacy of the award, the conditions necessary for the application of ORS 656.230(1) had not occurred.”

In others words, the insurer had done nothing unreasonable. Affirmed

Moral: Statutes rule over Department forms

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