Brad Garber’s Case Law Update – October 3rd, 2007

On this date: The man who invented the cold-air process of refrigeration, John Gorrie, was born in 1803. Writer Gore Vidal was born in 1925. In 1941, Chubby Checker was born. Fleetwood Mac singer/guitarist Lindsey Buckingham was born in 1947. In 1863, President Lincoln designated the last Thursday of November as Thanksgiving Day. The Federal Income Tax law was signed into law in 1913 (tax rate: 1%). In 1920, the NFL played its first games. The Palomar telescope lens, built by the Corning Glass Co., was completed in 1947 (200″ in diameter). “Captain Kangaroo” premiered in 1955. In 1961 the “Dick Van Dyke Show” premiered on CBS. “Mr. Ed” premiered, also. In 1971, Billy Jean King became the first female athlete to win $100,000. The Watergate trial started in 1974. In 1990, East and West Germany merged into one country.

Shirley J. Roney, 59 Van Natta 2271 (2007)

(ALJ Kekauoha)

SAIF appealed an order that set aside its denial of Claimant’s occupational disease claim for a mental disorder. In affirming the order, the Board afforded more deference to Claimant’s osteopathic physician than to Dr. Glass, a psychiatrist. It framed the dispute, as follows:

“Here, the only dispute concerns the requirement in ORS 656.802(3)(c) that there be a ‘generally recognized’ diagnosis of a mental or emotional disorder. Dr. Gray, an osteopathic physician and surgeon, opined that claimant ‘had a level of anxiety that rose to the pathological level of a DSM IV diagnosis.”

SAIF argued that Dr. Glass should be found more persuasive based on his greater expertise in mental disorders.See Abbott v. SAIF, 45 Or App 567, 661 (1980)(greater weight given to expert with more experience and expertise). The Board found that Dr. Glass did not address the significance of a number of Claimant’s symptoms and, therefore, was not persuasive despite his allegedly greater expertise in mental disorders.

Moral: Just because an expert is not an expert does not make him/her unpersuasive. Query: Can a chiropractor’s opinion support the compensability of a mental disorder?

Jim D. Edwards, Jr., 59 Van Natta 2332 (2007)

(ALJ Rissberger)

Claimant appealed an order that found his claim was not prematurely closed. The insurer had scheduled a “closing” IME, but Claimant did not attend it. The insurer then administratively closed the claim pursuant to OAR 436-030-0034(3). No PPD was awarded. Claimant requested reconsideration. He alleged that he was unable to attend the closing IME because a co-worker who was supposed to cover for him did not show up for work.

OAR 436-030-0034(3) provides, in pertinent part: “A claim must be closed when the worker is not medically stationary, and the worker fails to attend a mandatory closing examination for reasons within the worker’s control, and the insurer has notified the worker, by certified letter, at least 10 days prior to the mandatory examination, that claim closure will result for failure to attend a mandatory closing examination.”

In this case, the notification letter to Claimant stated as follows:

“If you are unable to attend this examination for reasons beyond your control, you must notify us within fourteen (14) days of the date of this letter.”

The Board found that the insurer’s letter did not strictly comply with the rule. Reversed

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