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 Brad Garber's Case Law Update - October 3, 2006 On this date: Writer Gore Vidal was born in 1925. In 1941, Chubby Checker was born. Lindsey Buckingham, of "Fleetwood Mac," was born in 1947. In 1789, Washington proclaimed November 26 as the 1st national Thanksgiving Day. In 1913, the Federal Income Tax (1%) was signed into law. In 1954, "Father Knows Best" premiered and, one year later, "Captain Kangaroo" premiered. One year after that, in 1956, the "Mickey Mouse Club" premiered. The "Dick Van Dyke Show" premiered, on CBS, in 1961, and "Mr. Ed" premiered. In 1971, Billy Jean King became the 1st professional woman athlete to win $100,000 in a single event. In 1974, the Watergate trial started. In 1990, Florida record store owner Charles Freeman was found guilty of obscenity, for selling 2 Live Crew records. James S. Daly, 58 Van Natta 2355 (2006) (Own Motion Order Reviewing Carrier Closure) This was an en banc decision in which all Board members were involved. The issue was whether prior disability awards could be added up, upon closure of an Own Motion claim, to result in a PTD award. Claimant injured his left knee on February 25, 1984. The initial claim was accepted for the conditions of torn lateral meniscus, left knee; possible anterior cruciate tear, left knee; lumbar strain with radiculopathy; dysthymic disorder; torn medial meniscus, right knee; and lumbar instability. Over the years, Claimant was awarded10% SPPD for the right knee, 10% SPPD for the left knee, and 72% UPPD for his low back and depression. Claimant then raised a post-aggravation rights new condition claim for bilateral osteoarthritis. He was successful in having the claim reopened for the new condtion. On closure, he was awarded 8% SPPD for his knees. Claimant appealed the closure, alleging that he was entitled to PTD benefits. At hearing, SAIF argued that Claimant's bilateral knee osteoarthritis was the only condition that should be considered in the PTD analysis because Claimant's Own Motion claim was last reopened for that condition. The ALJ rejected SAIF's argument, reasoning that neither ORS 656.278 nor the Director's disability standards limited the PTD analysis to disability attributable only to the "post-aggravation rights" new or omitted condition for the which the claim was reopened. Instead, the ALJ reasoned that the carrier is liable for disabilities resulting from a combination of all compensable conditions as they existed at the time of the hearing, and all preexisting noncompensable conditions as they existed at the time of the compensable injury. The ALJ awarded PTD benefits. On review, all of the members of the Board agreed with the ALJ concluding, "We conclude that, when evaluating PTD on closure of a 'post-aggravation rights' new or omitted medical condition claim, disability for a previously accepted condition is considered based on any disability that existed for that condition at the last claim closure that preceded the expiration of the claimant's 5-year aggravation rights." The Board went on for another 14 pages, explaining how it arrived at its decision. Then, it awarded Claimant's attorney $12,500. Affirmed (Think this will go up to the Court of Appeals?) William A. Hedger, 58 Van Natta 2382 (2006) (Order on Reconsideration) The ALJ found that Claimant's injury did not arise out of and in the course of his employment. The Board affirmed this decision. Claimant asked for reconsideration. Basically, it was his position that the employer gave him a truck to use, so the employer was responsible for his injuries sustained in a motor vehicle accident. In affirming the ALJ, however, the Board found that employer's ownership of the vehicle driven by Claimant was not enough to impose liability upon the employer. While the employer encouraged its employees to drive company vehicles home after work, it prohibited the use of the vehicles for personal use and consistently disciplined employees for unsafe conduct in the company vehicles. The evidence did not establish that the employer knew or expected that Claimant would be driving one of its vehicles on the day of the accident. It exercised no control over what Claimant was doing when he was involved in the accident. Claimant was driving home, after work, and allegedly decided to make a detour to visit the employer's construction site. The Board noted, "While claimant may have intended to visit the employer's construction site, he was doing so outside the direction and control of his employer." The "going and coming" rule was applied to find the Claimant's injuries non-compensable. Also, of some importance was the fact that the vehicle Claimant was driving belonged to his brother-in-law, and Claimant was on his way to see his (Claimant's) wife. Affirmed Edward G. Sprague, 58 Van Natta 2418 (2006) (Order on Remand) This matter came back to the Board, on remand, from the Court of Appeals. In this case, SAIF had denied the compensability of Claimant's gastric bypass surgery as an alleged consequence of his accepted left knee condition. The ALJ set aside the denial of medical services. The Board reversed, finding that Claimant's claim for medical services for gastric bypass was best characterized as one for a consequential condition and that Claimant's surgery was performed for his noncompensable obesity. It found, therefore, that Claimant's compensable knee injury was not the major contributing cause of the need for gastric surgery. The Court, however, disagreed with the Board's "consequential condtion" analysis and remanded the case for a determination whether, under ORS 656.245(1)(a), the gastric bypass procedure was a medical service for a condition that was "caused in material part" by the accepted condition. After having the issue framed in this way, by the Court, the Board determined that yes, indeed, Claimant's left knee injury was a material cause of his obesity and, therefore, the cause of his bypass surgery. Reversed on Remand (Claimant's attorney awarded $15,000, over and above the $5,000 previously awarded by the ALJ)
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