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 Brad Garber's Case Law Update - March 27, 2007 On this date: Corsican attorney, and Napoleon's dad, Carlo Bonaparte was born in 1746. In 1813, Nathaniel Currier (Currier & Ives) was born. The inventor of the X-ray, Wilhelm Rontgen, was born in 1845. Patty Smith Hill, the songwriter who wrote "Happy Birthday to You," was born in 1868. Mariah Carey was born in 1970. Spanish explorer, Juan Ponce de Leon, spotted Florida in 1513. In 1790, the shoelace was invented. The first Mormon temple was dedicated, in Kirtland, OH, in 1836. Andrew Rankin patented the urinal in 1866. The longest championship boxing match lasted 136 rounds in 1879. The Seattle Metropolitans became the first U.S. hockey team to win the Stanley Cup, in 1917. In 1939, the "Tall Firs," from the U of O, became the first NCAA champions, beating Ohio State, 46 - 33. The most violent earthquake in U.S. history hit Anchorage, AK, in 1964 (9.2 on the Richter scale). Belen Olaiz-Roman, 59 Van Natta 704 (2007) This case involved payment of interim compensation for "new or omitted" medical conditions. Claimant suffered an injury on September 29, 2005. Claimant's attending physician placed claimant on modified work beginning October 4, 2005. The physician indicated restrictions on "Return to Work" forms whenever claimant was examined, each noting a date of injury of September 29, 2005. Employer failed to pay interim compensation from November 8, 2005 until the claim was accepted. At hearing, the employer argued that it was excused from paying interim compensation because 1) the restrictions indicated on the "Return to Work" forms did not specifically relate the restrictions to the injury and because 2) the current disability appeared to come from a "new or omitted condition" which claimant had not requested acceptance of, pursuant to ORS 656.267. In awarding interim compensation from beginning November 8, 2005, the Board explained that interim compensation is payable on receipt of notice of a claim and an attending physician's authorization of disability until the claim is accepted or denied. Further, such authorization need not be made in explicit terms; when an objectively reasonable carrier would understand contemporaneous medical reports to excuse an injured worker from work, the carrier is obligated to pay such benefits. The Board also concluded that the employer's "new or omitted condition" argument was without merit, noting that new or omitted conditions, by their nature, come into existence only after an initial notice of acceptance. Thus, failure to request a new or omitted condition pursuant to ORS 656.267 is not grounds to deny interim compensation. Affirmed, with modification
Yvonne E. Roher, 59 Van Natta 701 (2007) (Order on Reconsideration) In the Order on Review of October 11, 2006, the Board set aside the self-insured employer's de facto denial of Claimant's new medical condition claim for left knee patellofemoral chondrosis. Employer requested reconsideration. The case is notable for the following recapitulation of case law related to "encompassed" letters. The Board recited the following: "[A]n 'encompassed condition letter' is not a valid response to a new or omitted medical condition claim because it is neither an acceptance nor an express denial. See ORS 656.262(7)(a); Rose v. SAIF, 200 Or App 654, 664 (2005); LeFave, 58 Van Natta at 1907; Rose, 58 Van Natta at 1606. It is well settled that if a claim is not accepted or denied within the statutory time limit, the claim is deemed de facto denied. See SAIF v. Allen, 320 Or 192, 215-16 (1994); Barr v. EBI Cos., 88 Or App 132, 134 (1987). Accordingly, if a carrier does not accept or deny a new or omitted medical condition claim within the statutory period prescribed in ORS 656.262(7)(a), but instead responds with an 'encompassed condition letter,' the claim is considered de facto denied. See James B. Billings, 58 Van Natta 2726, 2726 (2006); LeFave, 58 Van Natta at 1907; Rose, 58 Van Natta at 1606; Diana M. Randolph, 58 Van Natta 1031, 1034 (2006)." Keep in mind that, if a letter goes out advising the claimant that a condition was "encompassed" within the scope of initial claim acceptance, compensability of the condition cannot be denied, except in limited circumstances in which a "back-up" denial is appropriate. Affirmed
Jonelle A. Gamez-Morales, 59 Van Natta 711 (2007) (Order Denying Reconsideration)
The Board upheld Employer's denial of Claimant's occupational disease claim for a mental disorder. Claimant filed a Motion for Reconsideration. Unfortunately, the motion was not timely. The Board observed: "A Board order is final unless, within 30 days after the date of mailing copies of the order, one of the parties files a petition for judicial review with the Court of Appeals. ORS 656.295(8). The time within which to appeal an order continues to run unless the order has been 'stayed,' withdrawn or modified. Int'l Paper Co. v. Wright, 80 Or App 444 (1986); Fischer V. SAIF, 76 Or App 656, 659 (1986)." In this case, Claimant's attorney mailed the Motion for Reconsideration to the Board on the 30th day. The Board did not receive the motion until the 31st day. The Board further observed: "Our statutory authority to reconsider a prior decision is not premised on when a motion for reconsideration is mailed or filed. Instead, our authority is contingent on our issuance of another order (be that an abatement, reconsideration, amended, or any other order) prior to the expiration of the 30-day statutory period. Thus, regardless of when a motion for reconsideration is mailed or filed, the 30-day statutory period continues to run unless our order is withdrawn, abated, or reconsidered. See Pablo V. Valdivia, 58 Van Natta 2669 (2006); Janet F. Tillit, 53 Van Natta 1027 (2001); Cynthia J. Thiesfeld, 51 Van Natta 1420 (1999)." In other words, if you want to put the brakes on the appeal period, couple a motion for reconsideration with a motion for abatement and make sure you mail it before the 30th day. Reconsideration Denied
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