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 Brad Garber's Case Law Update - April 21, 2007 On this date: Naturalist John Muir was born in 1838. In 1915, actor Anthony Quinn was born. Iggy Pop (aka, James Newell Osterberg) was born in 1947. In 1789, John Adams was sworn in as the 1st U.S. Vice President, nine days before Washington was sworn in as President. The first bridge across the Mississippi River (Rock Island, IL to Davenport, IA) was completed in 1856. In 1898, the Spanish-American War started. Gideon Sundback of Sweden patented the zipper, in 1913. The first Polaroid camera was sold in the US, in 1948. In 1956, Elvisâ's first hit record, "Heartbreak Hotel," went #1 on the charts. The Beatles met the Stones, for the first time, in 1963. In 1982, the U.S. provided $1 billion worth of arms to Saudi Arabia. After 37 weeks as #1 album, "Thriller" was finally replaced by "Footloose," in 1984. Franz Weber, of Austria, set the downhill ski speed record at 209.8 kph, in 1984. In 1995, the FBI arrested Timothy McVey for the Oklahoma City bombing. Darrell D. Hodges, 59 Van Natta 962 (2007)
Claimant appealed from an order upholding the employerâ's denial of cervical injury. Claimant was involved in a motor vehicle accident and alleged that he suffered a compensable neck injury as a result. The Board disagreed, explaining that the medical evidence showed that claimantâ's neck injury stemmed from "stress" related to the accident. If this was the case, claimant was required, under ORS 656.802(2), to prove that the MVA was the major contributing cause of claimantâ's mental illness and meet the condition of ORS 656.802(3). Claimantâ's attending physician, while indicating it was possible that the stress caused the neck injury, did not give his opinion in terms of probability, nor did he weigh the potential causes in an effort to arrive at a major cause. The Board explained that "although medical certainty [was] not required, persuasive medical opinions must be based on medical probability, rather than possibility." Because claimantâ's attending physician couched his opinion in terms of possibility instead of probability, it was not persuasive. Affirmed Paul E. Campbell, 59 Van Natta 994 (2007) (ALJ Somers)
Recipe for Increased Attorney Fee
(1) Set up an office in Portland (2) Take a case out of Bend (3) Travel to Bend for hearing and one deposition (4) Submit eleven (11) exhibits (5) Win (6) Submit a bill for $10,710 Affirmed
Delphia D. Baechler, 59 Van Natta 999 (2007) (ALJ Otto)
The self-insured employer requested review of an Order that set aside its denial of Claimantâ's bilateral carpal tunnel syndrome condition. Employer submitted its opening brief on time. Claimant had 21 days within which to file her responding brief. She filed it on the 28th day. Employer made a motion to the Board to strike Claimantâ's responding brief. The motion was granted and only Employerâ's brief was considered. Employer lost. Affirmed
Lesson: On appeal, the Board is obligated to review the record, de novo, regardless of whether briefs are filed by the parties. So, having the other partyâ's brief kicked out may not make any difference in the outcome.
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