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 Brad Garber's Case Law Update - February 22, 2007 On this date: George Washington was born in 1732. Jan Matyas Nepomuk August Vitasek was born in 1770 (don't ask). In 1883, the voice of Disney's "Snow White," Marguerite Clark, was born. Robert Young ("Father Knows Best") was born in 1907. In 1932, Edward "Ted" Kennedy was born. In 1950, Julius Erving was born. Golfer and reknowned sexist, Vijay Singh, was born in Fiji in 1963. Drew Barrymore was born in 1975. American natives introduced pilgrims to popcorn, in 1630. In 1821, Spain withdrew its claim to the Oregon Territory. The first meeting of the Republican Party convenced, in Michigan, in 1854. Organized baseball was played, for the first time, in San Francisco in 1860. In 1889, President Cleveland signed a bill to admit North Dakota, South Dakota, Montana and Washington as states. Hawaii became a U.S. Territory in 1900. Airplanes were first banned from flight over the White House, in 1935. "Heartbreak Hotel" hit #1 on the charts in 1956. In 1988, speed skater Bonnie Blair set a world record in the 500 meter race, with a time of 39.10 seconds. "Don't Worry, Be Happy" won a Grammy in 1989. Patrick D. McKinney, 12 CCHR 11 (2007) (ALJ Sencer) This contested case decision from the Department is helpful to the extent that it clarifies jurisdiction between the Department and the Board. The underlying issue was whether the insurer was liable for the cost of a T1-2 discography. The Medical Review Unit found that the insurer was not liable for the cost of the test. It found that it had jurisdiction over the issue, under ORS 656.704(3)(a). In so finding, it determined that the issue did not concern a "matter concerning a claim." The parties, at hearing, did not dispute this determination. The insurer denied the diagnostic service, however, on the basis that the condition for which it was intended was not compensable. After discussing ORS 656.704(3), the Board observed, as follows: "Thus, it clearly provided for the director to have jurisdiction over all disputes arising from ORS 656.245 (medical services), ORS 656.248 (medical fee schedules), ORS 656.260 (managed care organizations), and ORS 656. 327 (medical treatment). The only exception to that jurisdiction was pursuant to ORS 656.245, when a denial issued regarding the compensability of the underlying claim." The Department found that it did not have jurisdiction over the issues raised, due to the character of the insurer's denial. Reversed Sherri L. Cochran, 59 Van Natta 328 (2007) (ALJ Kekauoha) Claimant injured herself in a fall, at work. She subsequently experienced neck, back and abdominal pain. SAIF denied compensability of Claimant's abdominal pain. Claimant alleged that whatever was causing her abdominal pain was compensable because she sought treatment for it. The ALJ agreed with Claimant, finding that diagnostic services were sufficient to constitute "medical services." See K-Mart v. Evenson, 167 Or App 46 (2000). In Evenson, the Court explained that, under ORS 656.005(7)(a), the harm, damage or hurt that is sufficient to amount to an "injury" is one "requiring medical services or resulting in disability or death." Therefore, the court determined that the claimant could establish a compensable injury if the work incident required medical services. The court went on to determine the diagnostic services might constitute medical services. The Board distinguished this case, as follows: "Here, the issue is whether claimant established a material causal relationship between the abdominal condition and the work injury. Although claimant sought diagnostic services to determine the source of her abdominal pain, she must also establish that the work incident was a material contributing cause of the need for treatment or disability for the abdominal condition. Tommy L. Brown, 58 Van Natta 3105, 3106-07 (2006)." The Board went on to find that Claimant did not establish that the diagnostic services were due to the work-related fall. Reversed Pelenatete Faaeteete, 59 Van Natta 353 (2007) (ALJ Ogawa) The issue on appeal was extent of PPD. Who cares? Just try to pronounce that name! Miranda J. Shank, 59 Van Natta 258 (2007) (ALJ Kekauoha) The ALJ declined to award unscheduled PPD, based upon the medical arbiter's determination that Claimant's lumbar range of motion was "within normal limits for the [claimant's] age and body build." Claimant alleged that this assessment did not sufficiently explain why the loss in range of motion findings were not related to her accepted low back strain condition. The Board disagreed, observing as follows: "It is well settled that a medical arbiter's opinion that ROM findings are 'normal' for a claimant (even though they may receive an impairment value under the 'standards') provides a sufficient basis for determining that such findings are not related to a claimant's compensable injury. Beverly B. Stigall, 52 Van Natta 1892, '1893' (2000); see also Mark D. Kinder, 57 Van Natta 1639, 1641 (2005); Maureen L. Gadotti, 53 Van Natta 500, 501 (2001)(medical arbiter's statement that the claimant's flexion findings were 'normal for her' provided sufficient written opinion, based on sound medical principles, explaining why the medical arbiter's findings should not be used to award permanent disability); Rebecca S. Mundell, 52 Van Natta 106 (2000)(medical arbiter's characterization of reduced cervical ROM as 'normal for this individual' did not relate decreased ROM to compensable injury)." Affirmed
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