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 Brad Garber's Case Law Update - January 3, 2007 On this date: William Tucker was the first black child born in America, in 1624. Author of "Lord of the Rings," R.R. Tolkien, was born in South Africa, in 1892. In 1909, musician/comedian Victor Borge was born in Copenhagen, Denmark. Stephen Stills (CSN&Y) was born in 1945. A year later, John Paul Jones (Led Zeppelinn) was born. In 1956, Mel Gibson was born. Actor Helena Bonham Carter was born, in London, in 1967. Protestant reformer, Martin Luther, was excommunicated from the Catholic Church in 1521. Oleomargarine was patented by Henry Bradley, in 1871. In 1924, British Egyptologist, Howard Carter, found Tutankhamun's tomb. Mussolini dissolved the Italian parliament, in 1925, and became a dictator. "Dragnet," with Jack Webb, premiered on NBC, in 1952. In 1959, Alaska was admitted as the 49th state. In 1974, gold hit a record value of $121.25/oz. By 1980, it was up to $634.00/oz. In 1987, Aretha Franklin became the first female artist to be inducted into the Rock & Roll Hall of Fame. "The Great One" scored his 700th goal against the New York Islanders, in 1991. Frank L. Farrell, 58 Van Natta 3213 (2006) (ALJ Lipton) After the issuance of the unfavorable Opinion & Order, Claimant requested review and offered new exhibits, documents arising out of a civil action in which the employer was found liable for damages for violating the FMLA. The Board refused to consider the "post-hearing" evidence because the documents would not effect the outcome and because a violation of the FMLA would have nothing to do with proof of medical causation under ORS 656. Claimant, simply, did not have the medical evidence to prove causation under ORS656.802(2)(a). Affirmed Craig W. Hoffman, 58 Van Natta 3220 (2006) (ALJ Rissberger) In 1986, SAIF accepted a "Ruptured Herniated Disc." It didn't specify the level of the disc. Even though an MRI scan revealed no evidence of a herniated disc, Dr. Campagna operated on the L5-S1 disc. In 2003, another MRI scan revealed an L4-5 disc herniation. Claimant sought reopening of his claim and authorization to undergo a right L5 foraminotomy. SAIF denied reopening on the ground that the requested treatment was not compensably related to the accepted L5-S1 condition. The ALJ upheld the denial. On review, Claimant relied upon contemporaneous medical records to show that SAIF REALLY accepted a disc herniation at L4-5, back in 1986. The Board agreed. Its analysis was as follows: "We first turn to the scope of SAIF's 1986 acceptance to determine if the L4-5 disc was the compensable injury. The scope of an acceptance is a question of fact. Ligatich v. Liberty Northwest Ins. Corp., 185 Or App 555, 561, on remand, Matthew P. Ligatich, 55 Van Natta 3411 (2003); Paulino C. Dela Cruz, 55 Van Natta 3588, 3589 (2003). Because the employer accepted a condition, the language of the acceptance determines what condition has been accepted. Johnson v. Spectra Physics, 303 Or 49, 56 (1987); Timothy A. Vinton, 53 Van Natta 979, 982 (2001). However, the acceptance was ambiguous as to what level the accepted disc herniation was located." The Board determined that by accepting a "Ruptured Herniated Disc," SAIF really accepted an L4-5 disc, even though it was the L5-S1 disc that was operated on! Reversed Owen A. Brown, 58 Van Natta 3237 (2006) (Order on Reconsideration) Claimant was injured on a private logging road. In setting aside SAIF's denial, the Board concluded that Claimant's injury was compensable under the "greater hazard" exception to the "going and coming" rule. SAIF requested reconsideration, arguing that the road upon which Claimant was injured was open to the public (hunters) and, therefore, he was not exposed to hazards in a greater degree than the general public. In other words, SAIF argued that because some people were allowed to use the private road, by permission, that rendered the road "public." HUH?? Affirmed
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