WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for March 23, 2018

Dr. Garber’s

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

March 23, 2018 

Allen Bakken, 70 Van Natta 206 (2018)
(ALJ Pardington)

Claimant requested review of an Opinion & Order that upheld SAIF’s denial of his occupational disease claim for solvent toxicity.

Claimant worked as a custodial worker at a hospital for 27 years before filing an occupational disease claim for illness related to exposure to cleaning chemicals at work.  Since 2008, he suffered from headaches, sensitivity to light and smell, lightheadedness and dizziness/vertigo.

In February 2016, claimant’s naturopath interpreted an “Environmental Pollutants Panel” urine test as showing high levels of monoethyl phthalate, xylene and benzene.  These chemicals correlated with the types of chemicals in the cleaning solvents claimant used, at work.

In May 2016, claimant submitted a blood sample for laboratory testing.  The naturopath reviewed the results and concluded that claimant suffered from “solvent toxicity.”  Claimant filed a claim for workers’ compensation benefits.

SAIF sent claimant to Brent Burton, M.D. for an IME.  Dr. Burton opined that claimant’s non-specific symptoms were not consistent with chemical exposure.  SAIF denied compensability of the claim.

So, this was a war between the experts, a medical doctor with expertise in toxicology, and a naturopath.  The naturopath won.

The naturopath relied on literature published by the Agency for Toxic Substances and Disease Registry (ATSDR).  ATSDR data included in the record, and relied upon by the naturopath, reported that benzene exposure can cause numerous symptoms including headaches, dizziness, stumbling and fainting One of the chemicals used by claimant, at work, was called “Quat Stat.”  It contained benzene and xylene.  Because Dr. Burton did not address the ATSDR data (which conflicted with his understanding of benzene-related symptoms), the Board discounted his opinions. Reversed.  $10,000 assessed fee. 

Lesson: Education does not, necessarily, trump explanation 

Sean P. Paredes, 70 Van Natta 372 (2018)
(ALJ Ogawa) 

Claimant requested review of an Opinion & Order that upheld SAIF’s denial of claimant’s new/omitted medical condition claim for a left shoulder labral tear.  Affirmed, citing Phillip J. Smith, 69 Van Natta 1103 (2017)(physician’s opinion attributing the claimant’s condition to work exposure, without explaining how the work exposure caused the condition, found insufficient to support the compensability of the claimed condition). 

Phillip J. Smith, 69 Van Natta 1103 (2017)
(ALJ Bethlahmy) 

In this case, the ALJ affirmed a denial of claimant’s occupational disease claim for a left upper extremity condition.  The ALJ reasoned that the opinion of Dr. Puziss, an examining physician, upon whom claimant relied to establish compensability of his claimed condition, was not persuasive.  Here’s why.

As the Board observed, as follows:

“We . . . conclude that Dr. Puziss’s opinion lacked a sufficient explanation regarding how claimant’s repetitive work activities were the major contributing cause of his left upper extremity condition.  Other than noting claimant put pressure on his ulnar nerve, forearms, and elbows by resting his forearms on a high desk, Dr. Puziss did not explain any explanation, biomechanical or otherwise, of how this activity, in addition to typing, caused his occupational disease.  See Michele M. Fort, 57 Van Natta 2427, 2428 (2005)(an opinion attributing a claimant’s condition to work exposure without explaining how the work exposure caused the condition did not establish the major contributing cause of the claimed condition).”  Affirmed 

Tip: It’s not enough to get an opinion.  The basis for it needs to be persuasively explained by the expert offering the opinion.

And, from the Court of Appeals:

Kuralt v. SAIF, 1400188; A159415 (February 28, 2018)

(Judge Egan) 

The issue in this case was whether claimant showed “good cause” for the late filing of his claim.  In Andrew Kuralt, 67 Van Natta 589 (2015), the Board reversed an Opinion & Order that found claimant had established good cause, under ORS 656.265(4)(c), for the late filing of his injury claim.  On appeal, the Court of Appeals reversed the Board, finding that claimant did, in fact, establish good cause.

Claimant’s excuse for not filing his claim, on time, was that a co-worker not in a supervisory position told him that his job would be in jeopardy if he filed another workers’ compensation claim.  Claimant was not aware of any other worker whose employment had been terminated because of the filing of a workers’ compensation claim.  Other lay witnesses testified that they were not aware of any employer who had their employment terminated because of the filing of a claim.

The Board concluded, as follows:

“Under the circumstances, we do not consider claimant’s subjective belief that he would be fired or laid off if he filed another claim to be supported by the preponderance of evidence.  Unlike Riddel [Riddel v. Sears, Roebuck & Co., 8 Or App 438 (1972)], this record does not support the conclusion that there was an ‘actual occurrence’ of a threat to claimant’s job to support his subjective belief.”

The Court of Appeals, attempted to distinguish its holding in Riddel, as follows:

“We said in that case that a worker’s subjective belief must be ‘induced by some actual occurrence which is susceptible to such an interpretation by him. [citation omitted] What we meant by that statement is that the worker’s subjective belief must be objectively reasonable.  If the worker’s subjective belief that the worker will be laid off is based on an actual occurrence from which the worker reasonably could conclude that the worker would be laid off, then the worker has established good cause.”  (emphasis added) What? 

The Court went on to find that the statement, to claimant by a co-worker, that he might lose his job if he filed a claim was an “actual occurrence” that made his subjective belief that he might lose his job “objectively reasonable.”  Reversed

Observation:  A rather serious erosion of the “late-filing” defense under ORS 656.265. See Cynthia H. Falk, 69 Van Natta 1634 (2017)(claimant’s claim filed late because she feared “negative connotations” from her employer for filing a claim, not considered to constitute “good cause.”) The decision, affirming the denial, was not appealed.