Brad Garber’s Case Law Update – September 17th, 2007

On this date: Warren E. Burger, Supreme Court Justice from 1969 through 1986, was born in Minnesota in 1907. Country singer Hank Williams was born in 1923. Actor Roddy McDowall was born in 1928. Oregon’s author, Ken Kesey, was born in 1935. In 1939, Supreme Court Justice David Souter was born in New Hampshire. The Philadelphia Convention adopted the U.S. Constitution in 1787. The first whaling ship to arrive, in Hawaii, did so in 1819. The National Football League was organized in Canton, Ohio, in 1920. In 1950, the San Fran 49ers played their first NFL game and lost, 21-17. The Minnesota Vikings played their first NFL game in 1961, and beat the Chicago Bears 37-13. “Bewitched” premiered on ABC, in 1964. In the same year, the Supremes released “Baby Love.” “M*A*S*H” premiered in 1972.

Loudes Guzman, 59 Van Natta 2146 (2007)

(ALJ Fulsher)

Claimant appealed an order that affirmed SAIF’s denial of her right wrist triangular fibrocartilage (TFC) tear. The case is helpful for the following:

“Claimant is correct that an ‘injury’ need not occur ‘instantaneously.’ A condition is analyzed as an injury when it arises from an identifiable event or has an onset traceable to a discrete period of time. Active Transportation Co. v. Wylie, 159 Or App 12, 15 (1999); Valtinson v. SAIF, 56 Or App 184, 188 (1982). We have found that conditions that developed over discrete periods of time were appropriately analyzed as injury claims.  See, e.g., Kimberly K. Penn, 58 Van Natta 2393, on recons, 58 Van Natta 2914 (2006)(the claimant’s right hip pain that began when she was assigned to work in orthopedic unit four times during week-long period analyzed as an accidental injury); James K. Crosley, 57 Van Natta 1226 (2005)(the claimant’s symptoms occurring over a period of a few days driving a truck without suspension analyzed as an accidental injury); Ramona Andrews, 48 Van Natta 1652 (1996)(the claimant’s foot pain beginning after working three days in the employer’s new facilities and increasing within about two weeks so that she could hardly walk analyzed as an accidental injury).”

The difference, of course, is significant because of the lighter burden of proof for an injury (material contributing cause), compared with that required to prove a disease (major contributing cause). Ultimately, Claimant’s TFC tear was analyzed as an injury, but there was no evidence of a distinct or discrete injury. Affirmed

Michael D. Kennedy, 59 Van Natta 2150 (2007)

(ALJ Otto)

Claimant appealed from an order that affirmed an Order on Reconsideration that affirmed an award of no PPD. The accepted condition was a lumbar strain. There was evidence that she suffered, also, from preexisting degenerative pathology. Claimant’s attending physician opined that he “suffered no impairment or work restrictions as a result of the accepted condition.” The Board determined that this information was sufficient to determine the extent of PPD associated with the accepted condition. The ARU apportioned Claimant’s impairment. Claimant felt that this was not appropriate because, he argued, his lumbar strain “combined” with the preexisting pathology. The Board noted, as follows:

“Apportionment is not appropriate if work conditions or events were the major contributing cause of a pathological worsening of a preexisting physical condition. OAR 436-035-0014(1)(b). Similarly, apportionment is not appropriate if the compensable condition combined with a  preexisting condition and remained the major contributing cause of the accepted combined condition. OAR 436-035-0014(1)(c).”

The Board found that neither situation was presented by the medical facts. Dr. Ha said that Claimant’s condition was the result of “a combination of preexisting degenerative changes, i.e., facet arthrosis as well as a lumbar strain.” He went on to state, however, that the accepted condition of lumbar strain was “on top” of the degenerative changes, and he did not opine that any such combination had pathologically worsened any preexisting condition. OAR 436-035-0014(1)(b) was found to not apply. Of significance, also, was the fact that SAIF did not accept a combined condition; it only accepted the lumbar strain. It observed, “In the absence of an accepted combined condition, OAR 436-035-0014(1)(c) does not prohibit apportionment. Jose J. Jerezano, 54 Van Natta 530, 531 (2001).” Affirmed

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