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 Brad Garber's Case Law Update - June 12, 2007 On this date: Johanna Spyri, the author of "Heidi," was born in 1829. In 1924, George H.W. Bush was born. Anne Frank was born in 1929. In 1932, Jim Nabors (aka, Gomer Pyle) was born. Explorer George Vancouver "discovered" the site of Vancouver, B.C., in 1792. In 1812, Napoleon began his invasion of Russia. In 1889, a tornado killed 119 people in New Richmond, WI. The Secret Service extended protection of the President to the President's family, in 1917 (after the murder of Nicholas II, and his family, in Russia). In 1948, Eddie Arcaro became the first jockey to win the Triple Crown, twice. In 1964, South Africa sentenced Nelson Mandela to life in prison. The Rolling Stones released "Satisfaction," in 1965. The US Supreme Court unanimously overruled laws against interracial marriage, in 1967. Patrick D. Markee, 59 Van Natta 1408 (2007) (ALJ Naugle) Claimant requested review of an Opinion & Order that upheld the insurer's denial of his occupational disease claim for low back and leg conditions. Claimant tried to rely on his attending physician's opinions, a practicioner with whom he had a 20-year history. The ALJ did not find the attending physician persuasive. The Board observed, as follows: "Whether claimant's work activity for the insured caused his low back and leg condition is the central issue in this case. This issue involves expert analysis, rather than expert external observation. Therefore, the status of attending physician confers no special deference. Allie v. SAIF, 79 Or App 284 (1986); Betty J. Raaf, 57 Van Natta 1043, 1045 (2005)." Affirmed Moral: Longevity of relationship does not a persuasive expert make. Douglas D. Flath, 59 Van Natta 1412 (2007) (ALJ Naugle) This case is reported, primarily, because of the following explanation of the difference between "combined" and "consequential" conditions, as follows: "A combined condition occurs when an otherwise compensable injury combines with a preexisting condition to cause or prolong either disability or a need for treatment. Multifoods Specialty Distrib. v. McAtee, 333 Or 629 (2002). For a ‘combined condition' to exist, two conditions must merge or exist harmoniously. Luckhurst v. Bank of America, 167 Or App 11, 16-17 (2000); Chad Van Natta, 58 Van Natta 150, 154 (2006). Under ORS 656.005(7)(a)(A), a consequential condition is ‘a separate condition that arises from the compensable injury, for example, when a worker suffers a compensable foot injury that results in an altered gait that, in turn, results in back strain." Fred Meyer, Inc. v. Crompton, 150 Or App 531, 536 (1997)." In this case, the Board found that Claimant's condition was correctly characterized as a combined condition and that the employer did not meet its burden of proof. Affirmed Brian C. Smallwood, 59 Van Natta 1416 (2007) (ALJ Somers) Claimant was injured in a compensable 1998 motor vehicle accident. He treated with a "Dr. Koller," who prescribed a number of pain medications including OxyContin, Soma and Trazodone. Over the years, Claimant's use of narcotic medications increased. On January 29, 2005, Claimant went out to dinner and consumed "one to two beers" (yeah, sure) and went to bed. During the night, he died. The cause of death was determined to be "complications of narcotic overingestion, due to, or as a consequence of: chronic cervical pain and headaches due to, or as a consequence of: motor vehicle accident." On October 27, 2005, Claimant's wife filed a claim for survivor's benefits. SAIF denied the claim. The ALJ and Board analyzed the claim as one for a consequential condition (see above). It was Claimant's wife's burden to show that her husband's use of compensable narcotic medication (methadone) was the major contributing cause of his death. See Barrett Business Srvcs. v. Hames, 130 Or App 190, rev den, 320 Or 492 (1994)(when treatment for a compensable injury is the major contributing cause of a new injury, the compensable injury itself is properly deemed the major contributing cause of the consequential condition under ORS 656.005(7)(a)(A)) Claimant's experts argued that his ingestion of methadone was the major contributing cause of his death; SAIF's experts argued that his ingestion of alcohol was the major contributing cause of his death. Ultimately, the Board found Claimant's expert's to be most persuasive. Affirmed (Attorney fee: $10,000, plus $3,000 on review)
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