Brad Garber’s Case Law Update – November 12th, 2007

On this date: Sculptor Auguste Rodin was born in 1840. In 1866, Sun Yat-sen, the father of Taiwan (after being run off the mainland by Mao tse Tung) was born. Grace Kelly was born in 1929. Charles Manson was born in 1934. In 1945, Canadian singer/songwriter Neil Young (Crosby, Stills, Nash & Young) was born. Pudge Heffelfinger, the first pro football player (received $500), was born in 1892. In 1927, Trotsky (co-founder of the Bolshevik Revolution, with Vladimir Lenin) was forced out of Russia by Joseph Stalin. The first known photo of the Loch Ness monster was purportedly taken in 1933. In 1933, the Nazis received 92% of the vote. The first hot air balloon crossing of the Pacific Ocean was completed in 1981. In 1982, Yuri Andropov succeeded Leonid Brezhnev as Soviet premier.

Deanna Layman, 59 Van Natta 2670 (2007)

(Order on Reconsideration, Remanding)

On September 19, 2007, the Board withdrew its August 27, 2007 order that: (1) vacated an ALJ’s order that set aside the self-insured employer’s denial of Claimant’s injury claim for a tooth fracture; and (2) remanded the matter to the ALJ to admit previously excluded reports from an “out-of-state” dentist. On reconsideration, Claimant contended that the disputed exhibits were inadmissible based on the court’s reasoning in Downey v. Halvorson-Mason, 20 Or App 593 (1975). In Downey, the court affirmed the Board’s ruling that excluded reports on the basis that the “out-of-state” physician did not treat or examine the claimant. Therefore, the court held that ORS 656.310(2) limited admissibility of out-of-state doctor reports to a treating or examining physician. See Dave D. Hoff, 45 Van Natta 2312, 2313 (1993).

At the hearing, Claimant’s attorney objected to the admissibility of the out-of-state dentist’s reports on the basis that the dentist was “not subject to cross-examination being an out-of-state doctor.” The ALJ ruled that the proposed exhibits were inadmissible, under ORS 656.310(2), because they were submitted within 30 days of the date of hearing. On review (first time around) Claimant’s attorney did not challenge the admissibility of the reports on the basis that they were authored by an out-of-state physician. Rather, she argued that the basis for the ALJ’s exclusion of the exhibits was within the ALJ’s discretion, under ORS 656.310. The employer, of course, argued that the ALJ abused his discretion. The Board agreed and remanded the matter to the ALJ for further proceedings, after admitting the exhibits. Claimant asked for reconsideration of that ruling and, second time around, raised the Downey holding as an alternative basis for excluding the exhibits. The Board refused to consider the newly-raised issue, under Stevenson v. Blue Cross, 108 Or App 247, 252 (1991)(Board may refuse to consider issues on review that were not presented at hearing). Affirmed/Remanded

Kliffton Ferguson, 59 Van Natta 2672 (2007)

(ALJ Brazeau)

Claimant, a temporary worker, sustained a shoulder injury while working for a client company of the employer on August 28, 2006. The employer had a drug testing policy allowing it to require drug tests of its employees after accidents. Nevertheless, claimant did not undergo a drug test after the accident. On September 11, 2006, the employer terminated Claimant’s employment on the ground that Claimant had not undergone a drug test that had been requested on August 28, 2006.

Claimant’s claim was accepted, but time loss payments were not made due the termination of Claimant’s employment. Claimant requested a hearing. At the hearing, Claimant testified that a “Ms Martin” had informed him that it was not necessary for him to take the drug test. Ms Martin testified, however, that did not have the authority to excuse Claimant from taking the drug test, and that she directed Claimant to allow himself to be tested. Finding Ms Martin’s testimony more credible than Claimant’s, the ALJ found that Claimant’s employment was terminated for his failure to follow the employer’s drug testing policy, and that Claimant’s temporary disability benefits were properly terminated under ORS 656.325 (5)(b).

On review, Claimant submitted new evidence, a copy of an indictment dated March 5, 2007, accusing Ms Martin of committing aggravated theft by stealing over $10,000 from the employer, and a copy of Ms Martin’s April 23, 2007 petition to plead guilty to the crime. Under the circumstances, the Board felt compelled to remand the matter to the ALJ for consideration of this new evidence which cast substantial doubt on the credibility of the employer’s star witness. Remanded

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