|
|
 Brad Garber's Case Law Update - January 10, 2007 On this date: Revolutionary War fighter, Ethan Allen, was born in 1738. Jim Croce was born in 1943. Rod Stewart was born in 1945. One of my fav's, Donald Fagen, was born in 1948. In 1949, heavyweight champion and grill salesman, George Foreman, was born. In 1953, Pat Benatar was born. Singer/songwriter Shawn Colvin was born in 1958. "Common Sense," by Thomas Paine, was published in 1776. Florida became the 3rd state to secede from the Union, in 1861. John D Rockefeller incorporated Standard Oil in 1870. In 1935, Mary Pickford married Douglas Fairbanks. RCA introduced the 45 rpm record in 1949. In 1956, Elvis recorded "Heartbreak Hotel." Jerry Lee Lewis' "Great Balls of Fire" hit #1 on the country and r&b charts, and #2 on the pop chart, in 1958. Tudor Delcey, 59 Van Natta 34 (2007) (ALJ Spangler) Claimant requested review of the ALJ's order that upheld SAIF's denial of his occupational disease claim for a mental disorder. He argued that the ALJ was biased and prejudged his claim before hearing the evidence. The Board interpreted Claimant's allegation of bias and prejudice as a request for a new hearing before a different ALJ. See Devin S. Demarce, 56 Van Natta 222 (2004). With regard to the allegation of bias, the Board had the following to say: "If claimant believed that the ALJ was biased in favor of SAIF, it was incumbent upon claimant' to object at the hearing level and request a change of ALJ at that time. See OAR 438-006-0095(2). Claimant's request for a new hearing before a different ALJ at this stage in the litigation is neither timely nor in accordance with the applicable administrative rule. See Philip G. Michael, 46 Van Natta 519 (1994)(OAR 438-06-0095 requires a timely objection and request for a change of ALJ based on bias or prejudice)." The Board went on to find that Claimant did not carry his burden of proof on the merits. Affirmed Clarence C. Fetters, 59 Van Natta 37 (2007) (ALJ Lipton) SAIF appealed an Order that set aside its denial of Claimant's occupational disease claim for a mental disorder. Claimant allegedly collapsed (drama) and was diagnosed with "adjustment disorder with anxiety" by a nurse practicioner, after his supervisor (a school principal) criticized him "in a loud and harsh manner." This was during a "discussion" that Claimant was having with the principal about his job performance. The ALJ found that criticizing Claimant, in such a manner, was not a reasonable disciplinary, corrective or evaluation action. (Oh....poor baby!) The Board did not really address whether yelling at an employee is reasonable; instead it found that the nurse practicioner did not really explain why Claimant had the psychiatric condition of "adjustment disorder with anxiety." In fact, it was not apparent, from the record, whether the nurse practicioner psychologically evaluated Claimant in arriving at her diagnosis. In short, Claimant did not have the medical evidence to support his claim. Reversed Preciliano Q. Espinoza, 59 Van Natta 40 (2007) (ALJ Lipton) The Employer requested review of an Order that set aside its partial denial of Claimant's injury claim for left foot degenerative arthritis and osteophytes. On March 23, 2004, while working, Claimant fell while descending stairs. He struck his left heel and low back when he landed. The employer accepted a nondisabling lumbar strain/left heel contusion. The employer denied, however, Claimant's claim for left foot degenerative arthritis and osteophytes. The main issue was "legal" causation. Resolution of that issue depended on Claimant's testimony and the contemporaneous medical records.In other words, credibility was important. The ALJ did not make credibility findings. In thatcase, the Board decided to address some glaring inconsistencies. Atthe hearing, Claimant testified that, on March 23, 2004, he dropped a large pot of oil, weighing about 90 pounds, on to the middle of the top of his left foot. Interestingly, he did not mention that rather dramatic mechanism when he soughht emergency room care on thatdate. He did not mention that mechanism of injury to his attending physician, two months later. When the attending physician examinedClaimant, he noted thatthe dorsum (top) of his foot was nontender. Claimant told him, in fact, that he did not fall, or drop the pot of oil! Ultimately, the Board found Claimant to be not credible. Reversed
|
||||||
|
||||||||
|
||||||||
