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 Brad Garber's Case Law Update - December 20, 2006 On this date: In 1833, Dr. Samuel Mudd, whowas later convicted of administering medical aid to John Wilkes Booth, was born. Architect Louis Kahn was born in 1901. In 1946, singer/songwriter Patti Smith was born, as was author Uri Geller. Jazz singer Anita Baker was born in 1957. John Steinbeck died, at age 66, in 1968. Bobby Darin died of heart failure, at age 37, in 1973. Carl Sagan died, at age 62, in 1996. In 1803 France officially transferred all of the territory included in the Louisiana Purchase to the U.S., for the the sum of $27 million. In 1820, Missouri imposed a $1 "bachelor tax" on all unmarried men between the ages of 21 and 50. (Whew!!)Hawaii established its first post office in 1850. Thomas Edison first demonstrated the incandescent light bulb in 1879. In 1920, Bob Hope became an American citizen. Elvis Presley was given a draft notice to join the U.S. Army, in 1957. In 1962, the Osmond brothers premiered on the Andy Williams Show. Peter, Paul & Mary's rendition of John Denver's "Leavin' On A Jet Plane" reached #1 on the charts, in 1969. Joe Walsh joined the Eagles in 1975. In 1985, Howard Cosell retired after 20 years with ABC. The "Donald" married Marla Maples in 1993. Tye v. SAIF, 02-01738; CA A122013; SC S52964 (December 14, 2006) I reported on this one last year. The Court of Appeals had found that Claimant's time loss rate should be calculated based on an averaging of time actually worked, rather than over a 52-week period, under OAR 436-060-0025(5)(a). Claimant worked as a logger. In the off-season, when weather precluded logging activities, Claimant collected unemployment benefits. In his applications, he referred to prior logging seasons as "prior employments." While Claimant was laid off, during the winter months, both parties referred to this period as one of "unemployment." So, Claimant never was a full-time employee; he was properly characterized as a seasonal employee and his employment was marked by "extended gaps" of employment. OAR 436-060-0025(5)(a)(A) was held to apply. Affirmed Kachel v. Weyerhaeuser, 02-08262, 02-06416; CA A127115 (December 20, 2006) Claimant was compensably injured in 1981 and 1988. Both claims were accepted and processed to closure in 1981 and 1991, respectively. In March 2002, claimant's attending physician sent an 827 Form and accompanying chart notes to the insurer, requesting authorization to order an MRI scan. The insurer treated the submission as a claim for medical services and denied the basis for the proposed MRI scan. Two denials were sent out, referable to each prior claim. They were sent together, in the same envelope, dated June 26, 2002. Claimant's attorney timely requested a hearing regarding the 1981 claim, but was not aware of the denial on the 1988 claim until September 16, 2002. He requested a hearing from the denial on October 30, 2002. The ALJ concluded that, under ORS 656.319(1), Claimant's request for hearing, related to the 1988 claim, was time-barred. The Board agreed. Before the Court of Appeals, Claimant argued that the insurer's denial was not a valid denial and that, therefore, the 60-day appeal period did not apply. Claimant cited Basmaci v. The Stanley Works, 187 Or App 337, 67 P3d 433 (2003). In that case, the Court determined that, in the context of a new condition claim under ORS 656.262(7), an 827 Form did not fulfill the requirement that such a claim be made "clearly" and in writing. The Court, in that case, noted that "the Form 827 would likely suffice as a claim in some contexts." This was one of those contexts. In this case, Claimant signed the section of the 827 Form that clearly indicated that, by doing so, he was giving notice of a "claim." The Court found that, in this case, the 827 Form constituted a claim and that insurer's denial was not void. Claimant's request for hearing was untimely. Affirmed Teresa M. Altman, 58 Van Natta 3122 (2006) (ALJ Fulsher) In this case, SAIF issued a "noncooperation" denial, and a denial of compensability on the same date. Claimant requested a hearing. The parties agreed to bifurcate the proceedings. The first thing to be determined was whether the noncooperation denial was reasonable. The ALJ determined that it was, so the merits of the compensability denial were not addressed. On review, Claimant changed the rules of engagement and argued that, because SAIF issued a compensability denial, simultaneously with the noncooperation denial, it must have had sufficient information upon which to make a compensability determination. In that case, there was no need for further investigation, and its investigative demands were unreasonable. The Board agreed with this logic and reversed SAIF's noncooperation denial. Claimant was free to demand a hearing on the merits of the compensability denial. Reversed Brian G. Van Osdol, 58 Van Natta 3132 (2006) (ALJ Fulsher) The main reason I report on this one is for the following: "The scope of an acceptance is a question of fact. Columbia Forest Products v. Woolner, 177 Or App 639, 643 (2001); SAIF v. Tull, 113 Or App 449, 454 (1992). When a carrier does not identify the specific condition accepted, or if the specific acceptance is ambiguous, we look to comtemporaneous medical records to determine what condition was accepted. Gilbert v. Cavenham Forest Indus. Div., 179 Or App 341, 344 (2002); Jack L. Kruger, 52 Van Natta 627, 628 (2000); Fred L. Dobbs, 50 Van Natta 2293, 2295 (1998), aff'd, 172 Or App 446, adhered to as modified on recons, 173 Or App 599 (2001); compare Kim D. Wood, 48 Van Natta 482, 484 (1996), aff'd without opinion, Wood v. Bills Kwik Market, 144 Or App 496 (1996)(because there was a specific acceptance, it was not necessary to examine the contemporaneous medical evidence to determine what condition was accepted)." Compare this case, and the Board's reasoning, to the case I discussed last week, Michael S. Gallegos, 58 Van Natta 3079 (2006), in which the Board went in search of what was REALLY accepted, even though the acceptance specifically identified the accepted condition as a "tear of the posterior horn, right medial meniscus." The Board decided that the insurer REALLY accepted a combined condition. Moral: The Board will determine whether your acceptance is ambiguous. If it thinks there is ambiguity, it will search the medical record to find out what was really accepted. In this case, the Board found no ambiguity. Affirmed
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