Brad Garber’s Case Law Update – June 26th, 2007

On this date: Actor Peter Lorre was born in 1904. Noriyuki (“Pat”) Morita (“Karate Kid”) was born in 1933. In 1940, Billy Davis, Jr., of the “5th Dimension,” was born. In 1797, Charles Newbold patented the 1st cast iron plow (farmers wouldn’t buy it, because they thought the iron would pollute the soil). Queen Elizabeth and President Eisenhower opened up the St. Lawrence Seaway in 1959. In 1964, the Beatles released “Hard Days Night.” The U.S. returned the island of Iwo Jima (recently renamed) to Japan, in 1968. Liz Taylor divorced Richard Burton in 1974 (her 5th divorce).

Jose Amador, 59 Van Natta 1538 (2007)

(ALJ Hoguet)

ALJ Hoguet dismissed Claimant’s request for hearing, on the basis that it was not filed timely. Claimant appealed.

Claimant was struck in the head by the handle of a hand truck, in August of 2004. He reported the incident to his employer, but sought no medical attention. About six or seven months later, Claimant experienced headaches, which he attributed to his injury in August. He did not seek medical attention, however, until Janurary of 2006. He filed a claim, at that time, which was denied by the employer.

In upholding the denial, the ALJ reasoned that Claimant’s report of injury, in August 2004 did not provide sufficient notice under ORS 656.265(2) that the work incident “may involve a compensable injury.” On appeal, Claimant contended that his report of injury to his employer provided timely notice of his accident. The Board agreed. It reasoned, as follows:

“Notwithstanding claimant’s contemporaneous statement that he did not require medical treatment, we find that his report provided notice of the accident under ORS 656.265(2). That statute only requires that the report concern an accident that ‘may involve a compensable injury.’ ‘May’ is defined as ‘be in some degree likely to.’ Webster’s Third New Int’l Dictionary 1396 (unabridged ed 1993). The statute does not require that the involvement of a compensable injury be more probably than not; it only requires some degree of likelihood. See State v. Obeidi, 211 Or App 377, 381 n 3 (2007)(contrasting the level of probability expressed in the statutory language of ‘may be likely to endanger’ with higher levels of probability found in other statutes). Thus, claimant reported an accident that ‘may involve a compensable injury’ if his report concerned an accident which was in some degree likely to involve a compensable injury.”

Because the parties had agreed to not develop the record with regard to the compensability issue, the matter was remanded to the Hearing Division for further development of the record. Reversed and remanded

Rafael L. Ortiz-Lopez, 59 Van Natta 1564 (2007)

(ALJ Lipton)

SAIF accepted an “L4-5 left disc protrusion combined w/pre-existing degenerative disc disease at L4-5.” The claim was closed on March 14, 2006, with no PPD award. Claimant requested reconsideration, but did not request a medical arbiter examination. Instead, Claimant relied on a March 10 report, from the attending physician, that SAIF received on April 3, 2006. In that report, the AP made range of motion findings that would ultimately result in a 30% unscheduled PPD award. The AP found that Claimant had degenerative changes at L3-4, L4-5 and L5-S1. He felt that 75% of Claimant’s permanent impairment was due to his injury and the remainder was due to preexisting degeneration. On reconsideration, the Appellate Review Unit did not apportion any of the disability award. SAIF appealed the matter to the hearings division. After hearing, the ALJ affirmed the Order on Reconsideration and further assessed a 25% penalty under ORS 656.268(5)(e). SAIF appealed.

Before the Board, SAIF argued that the PPD award should have been apportioned. In response, the Board observed, as follows:

“Here, the only evidence regarding claimant’s impairment related to his accepted low back conditions is from Dr. Lawlor, who determined that 75 percent of claimant’s impairment was due to the accepted conditions. (Exs. 65, 74). Yet, SAIF accepted a combined condition consisting of an L4-5 disc protrusion and preexisting degenerative disc disease at L4-5. Moreover, SAIF has not issued a ‘combined condition’ denial. Under such circumstances, for purposes of rating impairment, claimant’s entire L4-5 condition, including that which was ‘preexisting,’ would be ratable because SAIF accepted a ‘combined condition’ and had not issued a major contributing cause denial under ORS 656.262(7)(b). See SAIF v. Beldon, 155 Or App 568, 575-76 (1998).”

SAIF also argued that Claimant’s range of motion measurements included noncompensable discs, for which it should not be found liable. The Board found, however, that Claimant’s limitations, at the L3-4 and L5-S1 levels constituted “direct medical sequelae,” based on Dr. Lawlor’s explanation that Claimant’s disc herniation at L4-5 made his multi-level degenerative changes symptomatic “and that pain from the symptomatic changes combined with pain generated from the herniated disc to contribute to muscle contraction and, therefore, loss of range of motion.”Affirmed in part; reversed with regard to 25% penalty under ORS 656.268

Angela M. Manring, 59 Van Natta 1585 (2007)

(ALJ Brazeau)

Claimant appealed an Opinion & Order that upheld the employer’s denial of Claimant’s occupational disease claim for hives. Employer requested sanctions for frivolous appeal. The original claim was for “hives, anxiety and depression,” but Claimant dropped the claim for anxiety and depression at the hearing. The Board affirmed the compensability determination. With regard to the frivolous appeal issue, the Board stated, as follows:

“Pursuant to ORS 656.390(1), the Board may impose an appropriate sanction if the request for review was frivolous or was filed in bad faith or for the purpose of harassment. ‘Frivolous’ means the matter is not supported by substantial evidence or was initiated without reasonable prospect of prevailing. ORS 656.390(2).”

The Board found that Claimant presented “colorable arguments on review that were sufficiently developed so as to create a reasonable prospect of prevailing on the merits.” Affirmed; no sanctions

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