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 Brad Garber's Case Law Update - November 28, 2006 On this date: John Bunyan, the author of "Pilgrim's Progress," was born in 1628. Presidential candidate, Gary Hart, was born in 1936. Songwriter Randy Newman was born in 1943. In 1949, musician and band director, Paul Shaffer, was born. Ferdinand Magellan began his crossing of the Pacific Ocean in 1520. Olympia was established as the capitol of Washington Territory in 1853. In 1943, FDR, Churchill and Stalin met, in Tehran, to map out strategy to win WWII. "Hopalong Cassidy" premiered on TV, in 1948. In 1988, Picasso's "Acrobat & Harlequin" sold, at auction, for $38.46 million. (It's in my bathroom).... Robert A Minten, 58 Van Natta 2924 (2006) (ALJ Crumme) In this case, the self-insured employer appealed an order that set aside its partial denial of Claimant's consequential condition claim for diabetes. Claimant's family history included diabetes (three uncles had the condition). The record indicated that genetics could have contributed to Claimant's development of diabetes. BUT, no medical expert attributed Claimant's diabetes to his genetic predisposition. Affirmed Note: While the attending physician associated diabetes with family history, ina general way, he did not expressly state that genetics contributed to Claimant's diabetes. Always make the connection between generality and the specifics of a particular claim. Barbara J. Anderson, 58 Van Natta 2926 (2006) (ALJ Brazeau) This was an AOE/COE case in which SAIF's denial was set aside. Claimant injured her ankle while walking down a flight of stairs to retrieve her boyfriend's ("client's") cat. The boyfriend, who was being cared for by Claimant, found it therapeutic to hold his cat. The ALJ set aside SAIF's denial, reasoning that Claimant was "on call" at all times to provide care for her boyfriend. Because holding and petting the cat was therapeutic for her "client," the ALJ determined that Claimant's purpose in retrieving the cat was to further her client's therapy. (He suffered from poor balance and was prone to falling). Accordingly, the ALJ determined that Claimant's injury, sustained while engaged in hercat-retrieval activity, arose out of and in the course of her employment. Ultimately, after reciting the usual litany, the Board found Claimant's injury to be compensable. It distilled the analysis as follows: "As a home care worker assigned to retrieve items for her client, claimant would reasonably be expected to descend stairs in completing her duties." In other words the purpose of the descent was not important, it was the act of descending that was important. Affirmed James B. Billings, 58 Van Natta 2961 (2006) (Order on Reconsideration) This case illustrates the difference between a "superimposed" condition and a "combined" condition. Something that is superimposed, is not something that is combined. If you intend to issue a "combined condition" denial, at some point, do not accept a condition "superimposed" on preexisting pathology. Michael E. Smith, 58 Van Natta 2978 (2006) (ALJ Mills) And, in the "Give Me a Break!" category..... Claimant appealed an order that upheld the denial of his cellulitis, resulting from an alleged mosquito bite! On review, Claimant alleged that he needed no medical evidence to establish the compensability of his cellulitis condition "because his work obviously caused his cellulitis." His argument was, essentially, that there was no evidence of off-work exposure that may have caused his cellulitis. "Evidence that disproves other causes of the condition is insufficient to meet claimant's burden." ORS 656.266(1); J.B. Washam, 57 Van Natta 2816, 2817 (2005). Claimant's attending physician (a "Dr. Miller") opined that a bug bite or scratch was probably the major contributing cause of Claimant's cellulitis, but he also testified that he had "no idea what caused" the infection. The Board did not find him particularly persuasive. Affirmed
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