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 Brad Garber's Case Law Update - April 26, 2007 On this date: John James Audubon was born, in Haiti, in 1785. Designer of Central Park and Golden Gate Park, Frederick Law Olmsted, was born in 1822. In 1904, William "Count" Basie was born. Architect I.M. Pei was born in 1917. In 1933, comedian Carol Burnett was born in San Antonio, TX. EWF musician, Maurice Williams, was born in 1938. Gary Wright ("Dream Weaver") was born in 1943. In 1514, Copernicus made his first observation of Saturn. The smallpox vaccine was first administered in 1721. Hawaii was first treated to the motion picture in 1906. In 1952, Patty Berg scored the best competitive round by a woman, with a score of 64 for 18 holes. Students seized the administration building at Ohio State University in 1968. In 1986, Arnold Schwarzenegger married Maria Shriver. The worst nuclear disaster occurred at Chernobyl, in 1986. William J. Godin, 59 Van Natta 1024 (2007) (ALJ Somers)
Claimant requested review of an Order that upheld the insurerâ's denial of his back injury claim. The issue was whether Claimantâ's injury arose out of and in the course of his employment. Claimant worked for the employer, a construction company, for one week. At the end of one week, Claimantâ's supervisor terminated his employment. Four days later, Claimant contacted the owner of the construction company, at another jobsite, and gave the owner a timecard for the previous week, along with a complaint that he had filed with the Washington Bureau of Labor and Industries. During the conversation with the owner, Claimant fell and injured his low back. He filed a claim, which was denied. At the hearing, Claimant tried to argue that turning in his time card was an job-related duty and, therefore, that his back injury arose out of and in the course of his employment. You would think that the fact that Claimant was no longer employed by the construction company would be dispositive; it was not. Instead, the Board analyzed whether the act of turning in his time card, four days after his employment was terminated, was something he had to do as part of his work duties. The Board found that it was not under any direction or control of his former employer, and was not something that Claimant was required to do. Affirmed
Roseburg Forest Products v. Humbert, H05021; A130216 (April 25, 2007)
In 1992, Claimant sustained a work-related back injury which resulted in a surgical disc fusion operation. In 2004, Claimantâ's physician recommended a repeat surgery. He notified RFP of the proposed surgery pursuant to OAR 436, 010-0250(2). RFP was required, at that point, to respond to the notice within seven (7) days by submitting a Form 440-3228 (Elective Surgery Notification). If it had done that, it would have had 28 days within which to schedule an IME. RFP did not do what the rule directed. It filed a Form 440-3228, but it was filed on November 17, 2004, almost two months after the attending physician proposed the surgery. RFP scheduled an IME, which Claimant attended. The attending physician and the IME physician, however, could not reach agreement with regard to the reasonableness or necessity of the surgery. RPF requested Medical Director review to settle the dispute. Ultimately, the director issued an order concluding that, because RFP did not meet the seven-day deadline for submitting the Form 440-3228, it was precluded from arguing that the proposed surgery was "excessive, inappropriate, or ineffectual." The directorâ's Order provided, in part: "Failure of the insurer to timely respond to the physicianâ's elective surgery request by submitting Form 440-3228, or to timely request administrative review pursuant to this rule shall bar the insurer from later disputing whether the surgery is or was excessive, inappropriate, or ineffectual." RFP appealed the Order to the Court of Appeals, arguing that the director exceeded her authority in promulgating OAR 436-010-0250(5). Relying on ORS 656.327, RFP argued that the director was required to review the propriety of proposed elective surgery whenever the issue was raised, and that the imposition of a seven-day deadline was beyond the directorâ's statutory authority. Citing Weyerhaeuser Company v. Miller, 306 Or 1, 760 P2d 1317 (1988), the Court concluded: "The lesson of Weyerhaeuser is that the board, pursuant to the authority granted by ORS 656.762(4), may promulgate rules that impose procedural criteria (not affecting the merits of a claim) that have the effect of denying an employer or claimant access to a review process even where statutes state that the review 'shallâ' occur. Such rules are within the boardâ's authority. That being the case, we see no reason to believe that the same lesson does not apply to rules promulgated pursuant to the same statute by the director." Affirmed
Moral: The rules regarding disputes arising out of elective surgery requests are strictly interpreted and applied.
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