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 Brad Garber's Case Law Update - March 31, 2007 On this date: In 1811, the inventor of the "Bunsen burner," Robert Wilhelm Eberhard von Bunsen, was born. Arthur Godfrey was born in 1903. Mexican writer, Octavio Paz, was born in 1914. In 1929, fashion designer Liz Claiborne was born. Trumpet player, and music mogul, Herb Albert, was born in 1935. In 1948, Al Gore was born. In 1889, the Eiffel Tower opened. Ford unveiled the V-8 engine in 1932. The Rogers & Hammerstein musical "Oklahoma" opened on Broadway, in 1943. In 1949, Newfoundland became Canada's 10th province. The Dalai Lama fled Tibet in 1959. In 1965, the U.S. first ordered troops to Viet Nam. The Doobie Brothers split up in 1982. Marva M. Graham, 59 Van Natta 766 (2007) (Order on Reconsideration)
The self-insured employer did not like the outcome of this case, and asked the Board to "explain the rationale" behind its decision to affirm the ALJ's Opinion & Order. The Board essentially retorted that it did not have to do that. It stated, "The court has held that a Board order need not set forth its own findings of fact and conclusions if it adopts an ALJ's order that is itself sufficient for substantial evidence review. George v. Richard's Food Center, 90 Or App 639, 640 (1998)." In other words, the Board merely has to state that the ALJ's order is sufficient. Don't ask it to explain itself. Affirmed
Linda S. Gavras, 59 Van Natta 786 (2007) (ALJ Naugle)
The self-insured employer appealed from an Order that set aside its aggravation claim denial. The accepted condition was "right wrist tendonitis." Reasoning that the accepted condition was not a specific diagnosis, the ALJ found that tendinopathy of the flexor carpi ulnaris and tenosynovitis of the right wrist were specific diagnoses that were encompassed within the scope of claim acceptance, and that those conditions had actually worsened. Not only that, but he found the employer's denial unreasonable, and assessed a penalty and related attorney fee. Claimant argued that, although the employer accepted tendinopathy and tenosynovitis as new/omitted medical conditions, those conditions were also encompassed within the initially accepted tendonitis condition. The Board found that the initially-accepted tendonitis condition (the employer subsequently accepted the "new" or "omitted" conditions of tendinopathy and tenosynovitis) was not the same, and had not worsened. See Evelyn R. Crossman, 56 Van Natta 1076 (2004); Mary C. Green-Kilburn, 57 Van Natta 2822 (2005). Reversed
Michael A. Leonhardt, 57 Van Natta 792 (2007). On November 21, 2003, claimant compensably injured his low back in a motor vehicle accident (MVA) with a third party. The Workers' Compensation carrier accepted the claim and paid benefits totalling $52,652.21. Thereafter, claimant filed a third-party civil action against the other driver. Because of significant questions concerning the degree of injury, claimant's pre-existing conditions and prior injuries, the claimant reached a settlement in the third party claim for $30,000.00. The insurer refused to approve the settlement as it was significantly less than the insurer's total lien amount. Claimant filed a request for hearing and the Board assumed jurisdiction pursuant to ORS 656.587. Generally, the Board will approve settlements negotiated between a claimant/plaintiff and a third-party defendant unless the settlement is "grossly unreasonable". In approving this settlement, the Board explained that the insurer's failure to recover full reimbursement for its entire lien is not determinative as to whether a third party settlement is reasonable. It estimated that, with the $30,000.00 settlement, the insurer would recover approximately 25% of it's lien, which was favorable compared to other settlements approved by the Board. Finally, the Board explained that a claimant was in the best position to determine reasonableness when he has knowledge of the factual and legal strengths and weaknesses of his case, and when he is able to calculate his net recovery. The Board particularly persuaded here because of the conflicting medical evidence, the relatively minimal damage to the vehicles, and the absence of a PPD award resulting from the compensable injury. James J. Kist, DCD, 59 Van Natta 797 (2007) (ALJ Otto) Claimant wanted "interim" time loss benefits, pending acceptance or denial of the decedent's beneficiaries' claim for death benefits. The ALJ reasoned that there was no statutory authority for the award of such benefits. See ORS 656.262, ORS 656.210(3), Bono v. SAIF, 298 Or 405 (1994). Without going into the statutory authority argument, the Board simply found that there was no evidence that the attending physician had authorized the payment of temporary disability. See Linda V. Greenslitt. Dcd, 48 Van Natta 24 (1996). Affirmed
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