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 Brad Garber's Case Law Update - April 12, 2007 On this date: Opera singer Maria Callas was born in 1923. In 1932, singer "Tiny Tim" (Herbert Butros Khaury) was born. Herbie Hancock was born in 1940. In 1947, David Letterman was born. David Cassidy (Partridge Family member) was born in 1950. England adopted the "Union Jack" as its national flag, in 1606. In 1844, Texas became a US territory. Jesse James robbed a bank in Columbia, KY in 1872 (one man dead, $1,500). A catcher's mask was first used in baseball, in 1877. A 231 mph wind was recorded at the summit of Mt. Washington, in NH, in1934. The 9th Master's tournament was won by Byron Nelson in 1942, with a score of 280. Harry Truman was sworn in as the 33rd US President in 1945. In 1954 (a very good year) Bill Haley & The Comets recorded "Rock Around the Clock." Ray Charles won 4 Grammy Awards in 1961. Simon & Garfunkel released "The Boxer" in 1969. In 1975, Linda Ronstadt released "When Will I Be Loved." Harold Washington became Chicago's first black mayor in 1983. The first genetically engineered mouse was patented in 1988. White v. The Boldt Company, 0402039; A128736 (April 11, 2007) The Board, in finding Claimant's cervical spine injury non-compensable, found that he had a pre-existing condition and that the major contributing cause standard of proof, under ORS 656.005(7)(a), was not satisfied by the medical evidence. On judicial review, Claimant contended that the Board erred in imposing the major contributing cause standard of proof because there was no medical evidence in the record that his degenerative disc disease was affirmatively diagnosed or treated prior to his work injury. He alleged that the material contributing cause standard should have been applied. The Court observed, "In this case, the board did not find that claimant's degenerative disc disease had been diagnosed before claimant sustained his December 2003 injury, nor did the board find that claimant had obtained medical services for symptoms of his disease before the injury." The Court went on to state, "The board did not explain – and it is not apparent – how the medical evidence establishes that claimant's preexisting cervical condition satisfied the statutory definition of a preexisting condition." Reversed and Remanded Roger E. Billings, 59 Van Natta 878 (2007) (ALJ Hoguet) Simply, this case stands for the proposition that, in order to prevail in a claim for a "new" condition, Claimant must prove that the condition exists. (DUH!) Claimant had an accepted claim for left-sided hernia. After surgery, Claimant continued to experience some pain symptoms. One of his doctors assessed a possible "ilioinguinal nerve entrapment" (INE) condition. Claimant asserted a new condition claim for that condition about seven years after the initial injury. The problem is that no physician could persuasively identify the actual cause of Claimant's ongoing pain. The diagnosis of INE could not be confirmed. The Board observed, "A new medical condition claim for specific conditions requires that the asserted conditions, in fact, exist. Navid C. Faraji, 58 Van Natt 2749 (2006); 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)." In this case, the existence of INE was not persuasively established. Reversed Larry W. Jones, 59 Van Natta 885 (2007) (ALJ Naugle) This was an AOE/COE case, in which the ALJ found that Claimant's fall, on his job site, was not work-related. The ALJ found that claimant had been injured while engaged in a recreational activitiy, i.e., shooting pigeons, for his personal pleasure. See ORS 656.005(7)(b)(B). Claimant, in fact, had told a coworker that he was going to go shoot nutria, and he left the office with his son's BB gun. The fact's surrounding the injury are, as follows: "On April 6, 2005, claimant told a coworker that he was going to shoot nutria and left the office with the BB gun. Sometime later, the coworker, Mr. Mespelt, heard a loud bang and saw dust coming from the third floor of the mill. He discovered claimant on the second floor in front of bagging bin number one. The BB gun and batteries for a flashlight were found near the body. No one witnessed claimant's fall. At hearing, claimant did not remember the incident." On appeal, Claimant asserted that, despite his employer's rule forbidding firearms on the job site, his activity of shooting pigeons (or nutria) arose out of and in the course of his employment. The Board bought it!! Even though Claimant told his coworker that he was going to go shoot nutria, at hearing he changed his story and said he was out trying to shoot pigeons to reduce the amount of guano on the catwalk. In this way, his activity benefited the employer. The Board bought it!! Claimant also pointed out that, even though his actions violated a policy, rule or directive (like…"no guns at work"), an injury may have been incurred "in the course of" employment if the violation related to the method of accomplishing the ultimate work duties. The Board bought that one, too!! Reversed Jerry M. Mouser, 59 Van Natta 904 (2007). In this case, claimant requested review of ALJ opinion finding his request for hearing of an Order on Reconsideration untimely. The insurer accepted claimant's C4-5 disc herniation resulting from an August 2004 injury. A March 22, 2006 Order on Reconsideration awarded 6 percent scheduled disability for claimant's right arm and 25 percent unscheduled disability for the cervical spine. Claimant requested a hearing on the Order. The claimant's attorney initially mailed the request for hearing on April 14, 2006. That mailing was returned to the claimant's attorney for insufficient postage. The request was again mailed with increased postage ($.63) on April 21, 2006. The request was again returned to the claimant's attorney for insufficient postage. The letter was re-mailed with the same postage, and finally received by the Board on April 26, 2006. If a hearing request is filed by mailing, and it was not sent as registered or certified mail, and the Board receives the request after the filing deadline, it shall be presumed that the mailing was untimely unless the party establishes that the mailing was timely. OAR 438-005-0046(1)(c). In an effort to rebut the presumption of OAR 438-00-0046(1)(C), claimant's attorney offered the affidavits of his legal assistant and of the mail carrier to whom the letter was hand delivered on April 21, 2006. The postal carrier's affidavit affirmatively indicated that the second mailing had the correct postage and the letter was retuned in error. In upholding the ALJ's opinion, the Board noted that the affidavits never indicated whether the letter was weighed properly. Without that evidence, and with the conflicting evidence that the US Postal Service returned the mail a second time for insufficient postage, the Board concluded that the claimant did not rebut, by a preponderance of evidence, the presumption that the request was untimely filed. Affirmed Punchline: The Board accepts hearing requests by email and fax. See: http://www.cbs.state.or.us/external/wcb/email/emailfilinginstructions.htm.
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