Brad Garber’s Case Law Update – November 2nd, 2007

On this date: Daniel Boone was born in 1734. The 11th President, James K. Polk, was born in 1795. In 1865, the 29th President, Warren G. Harding, was born. Actor Burt Lancaster was born in 1913. In 1961, country singer k.d. lang was born. James Garfield (R) was elected President in 1880. North Dakota became the 39th state, in 1889; South Dakota became the 40th. Warren G. Harding was elected President in 1920 (apparently on his birthday). In 1947, Howard Hughes’ “Spruce Goose” flew for the first and last time. Construction began on the Kingdome, in Seattle, in 1972. In 1976, Jimmy Carter was elected President.

Karl J. Wild, Dcd, 59 Van Natta 2587 (2007)

(ALJ Pardington)

Claimant, the surviving beneficiary of the deceased worker, requested review of an order that vacated an Order on Reconsideration that awarded temporary disability.

Mr. Wild died in April of 2006. In July of 2006, the Board posthumously reversed a prior Opinion & Order that upheld a denial of Mr. Wild’s occupational disease claim for a left arm condition. The claim was remanded to SAIF for further processing. In August of 2006, SAIF issued a Notice of Acceptance of lateral epicondylitis of the left elbow. About two weeks later, after having learned that Mr. Wild had passed away, SAIF closed the claim. The claim closure was appealed by Mr. Wild’s attorney, on behalf of Mr. Wild’s 11-year-old daughter, the only beneficiary. The ARU issued an Order on Reconsideration on October 11, 2006, awarding temporary disability between July 5, 2005 and January 11, 2006.

SAIF objected to the temporary disability award and, in particular, the validity of the reconsideration order, asserting that Mr. Wild’s attorney did not have authority to request reconsideration on behalf of decedent’s estate. It was not until December of 2006 that the beneficiary’s mother signed a retention agreement with Mr. Wild’s attorney, authorizing him to represent the minor beneficiary.

After hearing, the ALJ vacated the Order on Reconsideration, finding that the decedent worker’s death terminated counsel’s authority granted by the retainer agreement. See State v. Kaiser, 297 Or 399 (1984). Because the decedent’s former wife and mother of claimant did not retain counsel until December 29, 2006, the ALJ found there was no valid reconsideration request within 60 days of the August 16, 2006 closure notice.

The Board observed (correctly) that there is no Department rule that requires an executed retainer agreement before an attorney may file a valid reconsideration request. Mr. Wild died before the Notice of Closure issued, and his attorney requested reconsideration. The Board found that this was done on behalf of the beneficiary, even though the attorney did not represent the beneficiary. The reasoning was tortuous. Because SAIF mailed the Notice of Closure to decedent’s “estate,” and because a worker’s estate is not included within the statutory definition of beneficiaries, the Notice of Closure had no legal effect unless it was sent, also, to the “claimant’s attorney.” The Board found that the “only viable route for establishing the validity of the Notice of Closure” was to find that it was mailed to “claimant’s attorney.” Because it was, the Board decided that the ARU had jurisdiction to reconsider the NOC, and that the Hearings Division had jurisdiction to consider issues arising out of reconsideration. Reversed; ARU TTD award reinstated

Andrea D. Anderson, 59 Van Natta 2620 (2007)

(ALJ Brown)

Claimant requested review of an order that denied the admissibility of two post-hearing exhibits and upheld SAIF’s compensability denial of Claimant’s L5-S1 disc protrusion. At hearing, the ALJ allowed a continuance for the express purpose of obtaining depositions of Drs. Flemming, Grossenbacher, Okamoto, and Young. Drs. Young and Grossenbacher were deposed on January 11, 2006. Subsequently, Claimant submitted a radiology report from Dr. Wei, and a medical report from Dr. Okamoto as supplemental exhibits. Dr. Flemming was deposed on March 22, 2006 and Claimant submitted another report from Dr. Okamoto as a supplemental exhibit. Dr. Okamoto’s deposition was waived. SAIF objected to the admissibility of the post-hearing reports from Drs. Wei and Okamoto. In the Opinion & Order, ALJ Brown reasoned that she had left the record open for the express purpose of taking the depositions of four doctors. She did not leave the record open for the submission of post-hearing reports or reports that could have been submitted at the time of hearing. Accordingly, she excluded the reports. Claimant appealed and, in her briefing, made reference to the substance of the excluded reports. SAIF objected and asked that the material and associated arguments be stricken from the record.

The Board observed, as follows:

“We review the ALJ’s evidentiary ruling for an abuse of discretion. SAIF v. Kurcin, 334 Or 399 (2002); Richard W. Gallagher, 56 Van Natta 3290, 3291 (2001). Here, the ALJ held the record open for the purpose of allowing the parties to cross-examine Drs. Flemming, Grossenbacher, Okamoto, and Young. (Tr. 2). When an ALJ leaves the record open for a limited purpose, it is within an ALJ’s discretion to exclude evidence that does not comport with that purpose. Clifford L. Conradi, 46 Van Natta 854 (1994).”

Given the fact that the Claimant did not object to the express intent of the continuance at hearing, the Board found no abuse of discretion. Affirmed; exhibits and argument stricken

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