WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for January 22, 2017

Dr. Garber’s

by Brad G. Garber
Wallace, Klor, Mann, Capener & Bishop

January 22, 2018 

Glady Sosa-Shirley, 69 Van Natta 1790 (2017)
(ALJ Lipton)

This is reported because of the attorney fee awarded.  The ALJ awarded claimant’s attorney an assessed fee of $21,000, after finding claimant’s new/omitted medical condition claim for post-traumatic left shoulder arthritis compensable.  The self-insured employer appealed the Opinion & Order raising the compensability issue and seeking a reduction in the attorney fee.

The Board affirmed the ALJ’s decision on the compensability issue, but modified the attorney fee.  The Board went through the factors that it considers in awarding an attorney fee, under OAR 438-015-0010(4).  They felt the issue presented for hearing was of average complexity.  The hearing lasted 30 minutes, the hearing transcript was 24 pages long, and there were 78 exhibits.  The hearing took place in Ontario, and claimant’s attorney’s office is in Eugene, about 400 miles away.  An attorney’s travel time to a hearing represents hours of legal services rendered on behalf of a party and is considered in awarding a reasonable attorney fee.  See Carmen O. Macias, 53 Van Natta 689 (2001).  After considering the relevant factors, the Board cut the assessed attorney fee down to $12,000!  GO FIGURE!!

Claimant’s attorney did pick up another $4,000 for services on review.  But, $16,000 is better than $25,000.  Affirmed, in part, modified, in part 

Mary J. Rice, 70 Van Natta 15 (2018)
(ALJ Jacobson)

The self-insured employer appealed an Opinion & Order that set aside its denial of claimant’s carpal tunnel syndrome claim and awarded claimant’s counsel an assessed fee of $12,000.  This summary is offered as a contrast to the case summarized above.

In this case, the Board cited the opinions of five medical experts, in assessing the persuasive medical evidence. (In Glady Sosa-Macias, one expert’s opinions were discussed).  In contrast to the fairly detailed discussion of the factors involved in reducing the amount of the attorney fee, in Sosa-Macias, the Board, in this case, only wrote, “After considering the factors set forth in OAR 438-015-0010(4) and applying them to this case, we find that a reasonable fee for claimant’s attorney’s services on review is $5,250, payable by the employer.”  So, claimant’s attorney’s total fee is $17,250.  Affirmed 

(Will some computer geek just create a “reasonable attorney fee” algorithm?) 

Zachary J. McEntire, 70 Van Natta 27 (2018)
(ALJ Smith)

The self-insured employer appealed an Opinion & Order that awarded claimant 1% whole person impairment and 18% work disability for a thoracic condition.  The Order on Reconsideration awarded no PPD.

Based on the closing examination findings of claimant’s attending physician, the employer closed the claim with a 6% whole person impairment award, and an 18% work disability award.  It, then, promptly requested reconsideration and the appointment of a medical arbiter panel.

On reconsideration, the arbiter panel rejected all impairment findings as invalid on the grounds that they “vary from measured to observed.”  In addition, the medical arbiters attributed claimant’s symptoms to non-compensable degenerative conditions.  Based on the arbiter panel findings, the Order on Reconsideration reduced claimant’s PPD to zero.  Claimant requested a hearing.

After hearing, the ALJ reduced claimant’s whole person impairment award to 1%, but reinstated the 18% work disability award.  On review, the employer argued that, because the whole person impairment award was reduced, claimant’s work disability award should, likewise, be reduced.  The Board agreed.

While a carrier may only raise disagreement with impairment findings as an issue, when it requests reconsideration of an Notice of Closure under ORS 656.268(5)(e), a work disability award necessarily will be impacted if the claimant’s permanent impairment award is modified.  See ORS 656.214(2)(b); OAR 436-035-0007(2).

The Board recalculated claimant’s total PPD award, after taking into consideration the reduction in the whole person impairment award.  Claimant’s work disability award was also reduced to 13%.

Because claimant’s attorney preserved the 1% whole person impairment award, the Board awarded an assessed fee of $3,200.  Affirmed, in part, modified, in part