|
|
 Brad Garber's Case Law Update - November 2, 2006 On this date: Daniel Boone was born in 1734. In 1755, Marie-Antoinette was born. 29th President Warren G. Harding as born in 1865. In 1913, actor Burt Lancaster was born. Pat Buchanan was born in 1938. Country singer k.d. lang was born in 1961. James A. Garfield was elected President in 1880. Warren G. Harding was elected in 1920. In 1930, Ras Tafari was crowned "Haile Selassie I," the 225th emperor of the Solmonic Dynasty and the beginning of those known as "rastafarians." Harry Truman beat out Thomas Dewey in 1948. In 1972, construction started on the Kingdome, in Seattle. In Mexico, this is Dia de Muertos ("Day of the Dead"). John W. Hatfield, 58 Van Natta 2673 (2006) (ALJ Pardington) Claimant requested review of the ALJ's order that upheld the employer's denial of his "new" medical condition claims. Claimant argued that the conditions accepted constituted the "law of the case" with regard to the mechanism of injury. The Board disagree, noting "...[T]he acceptance does not mean that the 'law of the case' includes a history that [the accepted] conditions were caused by a 'traumatic neck injury.'" It continued, "The employer's acceptance refers only to those conditions; there is nothing showing that it was based on any particular history." For reference, I will include the explanation of the doctrine of "law of the case," contained in a footnote in the Board's order: "In Blanchard v. Kaiser Foundation Health Plan, 136 Or App 466, 470, rev den, 322 Or 362 (1995), the court explained that the 'law of the case doctrine' is a general principle of law and one well recognized in this state that when a ruling or decision has been made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon that inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review." In this case, while the law of the case established the compensability of the conditions previously accepted, it did not establish a mechanism of injury that may have been responsible for the newly-claimed, unaccepted, conditions. Affirmed Michael A. Kelly, 58 Van Natta 2682 (2006) (ALJ Bloom) The self-insured employer appealed an order that set aside its denial of Claimant's combined low back condition. In doing so, the ALJ determined that the employer had failed to establish that Claimant's compensable condition had ceased to be the major contributing cause of his need for treatment or disability. Under ORS 656.262(6)(c), a carrier may deny an accepted combined condition if the otherwise compensable injury ceases to be the major contributing cause of the combined condition. The Board has held that the "effective date" of the combined condition acceptance determines the "base line" for determining whether there has been a change in condition or circumstances justifying a denial under ORS 656.262(6)(c). In this case, the employer did not specify a baseline date when it issued its current condition denial. It merely referred to Claimant's "combined low back condition" on a couple of occasions, as though that had always been the character of the accepted condition. The Board held, "In other words, because the employer did not specify an effective date for its acceptance of the combined condition other than the injury date (May 1, 2004) referred to on its initial acceptance, we conclude that the employer accepted the 'combined condition' from the onset of claimant's injury claim (May 1, 2004)." The date of the combined/current condition denial was March 15, 2005. The Board found that there had been a change between May 1, 2004 and March 15, 2005, sufficient to justify employer's denial. Reversed Note: If you relate the date of combined acceptance back to the date of injury or initial acceptance, you're safe; if you don't say anything about when you accepted a combined condition but keep referring to the accepted condition as a combined one, you're safe; if you identify a date like "today" when you accept and then, simultaneously, deny a combined condition, you're not.
|
||||||
|
||||||||
|
||||||||
