Brad Garber’s Dispensary & Workers’ Compensation Cases


After a brief two-year hiatus, Dr. Garber will, once again, be publishing the:

“Dispensary of Cough syrup, Buffalo Lotion, Pleasant Pellets, Purgative Pectoral, Salve & Workers’ Compensation Cases.” 


 This renowned publication will be a compilation of case law updates from the desk of Brad G. Garber.  The observations expressed, will be those of Brad G. Garber and will not constitute legal advice on any particular issue.  To the extent that opinions are expressed, they are to be construed as such and will be solely those of the author.  The compilation will be offered in the hope that it may be useful to practitioners in the convoluted and arcane field of Workers’ Compensation Law, by providing periodic updates on recent decisions of the Oregon Courts, Workers’ Compensation Board, Department of Consumer & Business Services, and other sources of utmost repute.


And so, without further ado:


Board Cases:


Rafael R. Soto-Regalado, 57 Van Natta 720 (2011)

(ALJ Crumme)


The self-insured employer appealed an Opinion & Order that found a medical service (diagnostic MRI scan) compensable and awarded the claimant’s counsel $2,450 as an assessed fee.  There were two issues: (1) whether medical services were directed at a compensable condition; and (2) whether the medical services were reasonable and necessary.  The first issue could only be decided by the Hearings Division, the second issue could be decided by the Department.  The Board noted, however, the record did not establish that a medical service issue had been raised at the Department.


In Diana M. Steinbach, 63 Van Natta 413 (2011), the Board made the attorney fee contingent on the outcome of the medical service dispute presented to the Department.  In other words, if you have a medical service dispute that also involves a compensability issue, be sure to keep the irons hot in both fires.


In Soto-Regalado, there was no record of any dispute before the Department, so the Board awarded an attorney fee after finding the MRI scan compensable. Affirmed


Pamela M. Hamilton, 63 Van Natta 736 (2011)

(ALJ Donnelly)


This is an AOE/COE case in which the Administrative Law Judge found that the claimant’s injuries incurred as a result of a fainting spell at work were compensable.  The claimant fainted and struck her face on the floor of the kitchen in which she was working.  (Hate it, when that happens!)  


The ALJ concluded that, although the claimant’s fall was idiopathic in origin, the brick floor onto which her face landed was a condition connected with her employment.  SAIF appealed.


The Board observed that it was undisputed that the claimant’s injury occurred “in the course of” her employment.  The issue was whether the injury occurred “as a result of” her employment.


In a “mixed risk” situation, the claimant may suffer from some condition “peculiar to the individual.”  If that condition manifests itself in employment related conditions in which injury is more likely, the resulting injuries will be compensable.  If, however, the condition manifests itself in conditions that are not particularly employment related, like the existence of a floor, it is not compensable.  There must be a “substantial employment contribution” to the outcome.  


RULE OF THUMB: If the worker falls and hits nothing on the way down, the injury is not compensable; if the worker falls and hits something on the way down, the injury is compensable. Reversed


Theresa A. Graham, 63 Van Natta 740 (2011)

(ALJ Smith)


SAIF won one (Hamilton) and lost one.  In Graham, the claimant was at an employer meeting in a conference room.  She started to feel hot and dizzy, and started to sweat.  She stepped out of the room to get some fresh air, fainted and fell.  She hit her head on a slate tile floor and sustained multiple injuries.  It was determined that the claimant was anemic and that the anemia contributed to the syncopal event.  The legal analysis was similar to that engaged in, in Hamilton.  As in Hamilton, there was no dispute about whether the claimant’s injuries were incurred “in the course of” her employment.  The dispute was whether the injuries “arose out of” her employment.


The analysis pitted the “mixed risk” doctrine against the “increased danger” doctrine.  The Board applied the former to find the claimant’s injuries compensable because the medical evidence established that the employment conditions (a stuffy room) made her hyperthermic and contributed, substantially, to her syncopal event.  Affirmed  


Moral:  If a tree simply falls in a forest and hits another tree, Mother Earth is not responsible; If a tree falls in a forest, after having been subjected to too much rain, and hits another tree, Mother Earth had better be current with her insurance premiums.


Court of Appeals Cases:


Basin Tire Service, Inc. v. Minyard; A139891 (February 16, 2011)


In this case, the employer appealed an order of the Board that required it to pay for surgery necessitated by a worsening of the claimant’s accepted L4-5 disc condition.  The Board had determined that a CDA entered into by the parties barred the employer from asserting a defense that the claimant’s recurrent disc herniation was not compensable because its major contributing cause was a non-work-related injury.  The Court decided that the Board erred


The fight between the parties was about the level of proof.  The claimant argued that he only needed to show that his compensable injury was a material cause of his need for treatment.  The employer argued that the claimant must show that his condition had aggravated and that the major contributing cause of the aggravation was his accepted condition.  The Court accepted the employer’s argument and wrote, “For medical services of the type at issue here, that is, surgery for a condition that has worsened after a worker has become medically stationary, the medical benefit is available only through an accepted aggravation claim under ORS 656.273….”  In other words, the claimant had to show that his accepted L4-5 disc condition had actually worsened and that the major contributing cause of the worsening was his previously-accepted claim.


Importantly, the Court found that the Board did not confront the fact that a worker whose medical condition has become medically stationary is not entitled to receive medical services except by establishing an aggravation claim.  The Court observed that workers cannot release their right to receive medical services through a CDA.  It went on to state, “However, to exercise that right, a worker in claimant’s circumstances must pursue an aggravation claim pursuant to ORS 656.273.”


The Court sent the case back to the Board to determine whether the CDA entered into by the parties precluded the claimant from pursuing an aggravation claim.  Reversed & Remanded