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 Brad Garber's Case Law Update - May 30, 2007 On this date: Peter "the Great" Romanov, enlightened tsar of Russia, was born in 1672. Peter Faberge, another great Russian, was born in 1846. In 1964, Wynonna Ashland (aka, Christina Judd) was born. Mary Slaney's daughter, Ashley, was born in 1986. In 1868, Memorial Day was first observed when two women, in Columbus, Missouri, placed flowers on both Confederate and Union graves. The brassiere (aka, bra) was invented in 1889. The first recorded MVA occurred in 1896, when Henry Wells hit a bicyclist. Robert "Evil" Knievel jumped 16 automobiles, in 1967. In 1976, Bobby Unser's pit crew set a new pit stop record…4 seconds. Paul Simon married Edie Brickell, in 1992. Heriberto F. Gonzalez, 59 Van Natta 1238 (2007) (ALJ Lipton) Claimant requested review of the ALJ's order that upheld the insurer's de facto denial of his new or omitted medical condition claim for an L4-5 disc condition. This case is significant, primarily, for the following instructive litany: "Because the compensability issue does not concern the compensability of an initial claim, but rather the compensability of a new or omitted medical condition (L4-5 disc extrusion), claimant must prove that the diagnosed L4-5 disc extrusion, acceptance of which he specifically requested, in fact, exists. See, Maureen Y. Graves, 57 Van Natta 2380, 2381 (2005)(persuasive proof of the existence of the condition is a fact necessary to establish the compensability of a new or omitted medical condition); compare Boeing Aircraft Co. v. Roy, 112 Or App 10, 15 (1992)(when the case concerns an initial claim, the claimant need not prove a specific diagnosis if he proves that his symptoms are attributable to his work); Tripp, 89 Or App at 358 (same)." In other words... In an initial claim for an occupational disease condition, no specific diagnosis need be verified. Work-related disability and/or need for treatment is all that needs to be established. In a "new" condition claim, however, the alleged new condition must be verified. Teresa Cisneros, 59 Van Natta 1314 (2007) (Order on Remand) In its initial Order on Review, the Board found that Claimant's seasonal layoff of about 7 weeks did not constitute an "extended gap," under OAR 436-060-0025(5), and that Claimant's TTD rate should be calculated based on the 52 weeks of her employment preceding her injury, including the 7-week seasonal layoff. Citing Tye v. McFetridge, 199 Or App 529 (2005), the Court of Appeals remanded the matter for reconsideration. In Tye, the Oregon Supreme Court determined that the employment relationship ended with each seasonal layoff, and began again after each layoff. The Court reasoned that the seasonal layoffs were periods of unemployment, not "extended gaps" in the employment relationship. It concluded, therefore, that the "extended gap" portion of OAR 436-060-0025(5) was inapplicable. Because the claimant had worked less than 52 weeks, the Court remanded the case for application of OAR 436-060-0025(5)(a)(A) in determining the claimant's average wage at the time of his injury. The Board, on remand, stated as follows: "Here, as in Tye, claimant worked seasonally and her regular periods without work were periods of unemployment.  [citation omitted] She began working in June 2002 and sustained her injury on August 8, 2002. Consequently, claimant worked less than 52 weeks before her compensable injury. [citation omitted] Therefore, consistent with Tye, claimant's temporarily disability rate must be calculated based on her actual weeks of employment beginning in June 2002." In other words... Claimant's TTD rate cannot be "diluted" by the 7 weeks of layoff.
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