Brad Garber’s Case Law Update – August 16th, 2007

On this date: Labor leader, George Meany, was born in 1894. In 1897, Robert Ringling (Ringling Bros. Circus) was born. Israeli Prime Minister and Nobel Peace Prize winner, Menachem Begin, was born in 1913. In 1925, Fess Parker (“Davy Crockett”) was born. Madonna (the pop star) was born in Bay City, MI, in 1958. Pre-HIPAA, Chang & Eng Bunker, Siamese twins, arrived in Boston for an exhibit, in 1829. The Emancipation Proclamation was signed by President Lincoln in 1863. Gold was discovered in the Klondike, in 1896. The first roller coaster was patented in 1898. In 1954, Sports Illustrated published its first issue.

Kellye J. Decker, 59 Van Natta 1839 (2007)

Claimant requested review of an Order that found (among other things) that the self-insured employer’s denial was procedurally valid. The accepted condition was a right chronic patellar dislocation. The claim was closed on March 23, 2005. On July 29, 2006, Claimant’s attending physician requested authorization to perform a surgical realignment of the right knee. The employer issued a denial on the grounds “that there is insufficient evidence to justify the contention that the accepted claim is the major contributing cause of your need for surgery.”

At hearing, Claimant argued that the employer’s denial was procedurally invalid, contending that a combined condition must first be accepted before it can be denied. The ALJ rejected that argument, finding that because the denial was not of a combined condition, but rather a denial of medical services, the procedural requirements of ORS 656.262(6)(c) did not apply.

The Board agreed with the employer’s characterization of its denial. It stated, “This dispute requires a determination of whether a sufficient causal relationship exists between medical services and an accepted claim.” See AIG Claim Services v. Cole, 205 Or App 170 (2006)(explaining the three types of medical service disputes under ORS 656.704(3)(b)).

Claimant argued that the employer could not deny a medical service on a “major cause” ground when a combined condition had never been claimed, accepted or denied. The Board disagreed. It observed, as follows:

“ORS 656.262(6)(c) provides that a carrier’s acceptance of a combined or consequential condition shall not preclude the carrier from later denying the combined or consequential conditon if the otherwise compensable injury ceases to be the major contributing cause of the combined or consequential condition. For a denial to be procedurally proper under ORS 656.262(6)(c), ‘the acceptance of a combined condition must precede the denial of a combined condition.”

“Here, however, the employer did not issue a denial of claimant’s combined condition. Rather, the employer issued a denial of claimant’s right knee surgery request pursuant to ORS 656.245(1)(a). Therefore, ORS 656.262(6)(c) does not apply and we are not persuaded that the employer’s denial was procedurally invalid.” Affirmed

Evalyn V. Stevens, 59 Van Natta 1925 (2007)

ALJ Myzak found that Claimant was not a “worker” under the Act. Claimant appealed.

Finding that Claimant had voluntarily withdrawn from the work force at the time of disability, and did not prove that she was willing to work or had made reasonable efforts to obtain work, the ALJ declined to award her temporary disability benefits. On de novo review, the Board found that it did not even have jurisdiction to address the matter. The Board observed, as follows:

“Although neither party has raised it, the threshold question posed by these facts is whether the Hearings Division, or the Board on review of the ALJ’s order, has subject matter jurisdiction over the claim. Subject matter jurisdiction cannot be waived by the parties or the Board. Earl F. Goodmanson, 52 Van Natta 1347 (2000); Bill D. Coleman, 48 Van Natta 2154 (1996). Even if not raised by the parties, when presented by the record, it is our duty to consider whether we have subject matter jurisdiction on our own motion. Southwest Forest Indus. v. Anders, 299 Or 205 (1985).”

In this case, Claimant’s aggravation rights had expired. Her claim had to be processed under the Board’s Own Motion jurisdiction, under ORS 656.278(1). The dispute over Claimant’s entitlement to temporary disability arose out of the Board’s Own Motion jurisdiction. Accordingly, the Hearings Division lacked subject matter jurisdiction over the matter. The ALJ’s order was vacated, and Claimant’s request for hearing was dismissed.

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