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 Brad Garber's Case Law Update - October 18, 2006 On this date: The Little Orphan Annie comic strip character was invented in 1922. Chuck Berry was born in 1926. In 1939, Lee Harvey Oswald was born. Chicago Bears' Mike Ditka was born in 1939. In 1956, Martina Navratilova was born. Jean-Claude van Damme was born in 1958. In 1961, Wynton Marsalis was born. In 1867, the U.S. took formal possession of Alaska, from Russia. The 1st commercial long distance phone line opened (Chicago to New York) in 1892. Walt Disney's "Jungle Book" was released in 1967. Bob Beamon set the world record in the long jump (29'2") in Mexico City, in 1968. Lee Evans set the world record in the 400 meters at 43.8 seconds, in 1968. (My 440-yard mark was 54 seconds, so he was about 10 VERY fast seconds ahead of me). Reggie Jackson hit three consecutive home runs and tied Babe Ruth in 1977. WARNING!! Karjalainen v. Curtis Johnston & Pennywise, Inc., 03-03986, 03-06069; A127490 (October 18, 2006) The issue, in this case, was whether Claimant had a "preexisting conditon" that triggered the major contributing cause burden of proof. The Board held that, although the term "arthritis or an arthritic condition" appears in ORS 656.005(24), its meaning is essentially one of fact that must be determined by the testimony of medical professionals. In this case, the Board determined that the medical evidence established that Claimant had arthritis. Claimant contended that the meaning of the statutory term must be determined by reference to familiar interpretive principles and that those interpretive principles led to a definition of arthritis that, on this record, did not apply to him. The Court of Appeals agreed. At the hearing, the parties disputed the appropriate burden of proof. Employer argued that, because Claimant's disc herniation was a result of both his work injury and a "preexisting condition" of degenerative disc disease, the claim for disc herniation must be evaluated as a "combined condition." In that case, Claimant would have to prove that the major contributing cause of his condition was the herniation, and not the preexisting degenerative pathology. Claimant argued, on the other hand, that his degenerative disc disease was not a "preexisting condition" within the meaning of the workers' compensation statutes, and that his claim could not be properly evaluated as a combined condition. He argued that he need only prove that his work injury was a material contributing cause of his disc herniation. The Court agreed with Claimant that "arthritis" is a common term that is "no stranger to ordinary discourse." In other words, the Court decided that medical opinion was not necessary to explain what "arthritis" is, or is not. ("I know arthritis when I see it.") The Board had rejected the ALJ's decision that both the ordinary meaning of the term "arthritis," and the more specialized definitions of the term, consistently suggested that it referred to an inflammation of one or more joints. The Court rebuffed the Board and held, "The board erred in rejecting that definition of the statutory term in favor of one based on what it regarded as the most persuasive evidence as to current medical understanding of the term." Reversed and remanded for reconsideration (Tip: In speaking with doctors about a preexisting DDD, one should ascertain whether that condition involves an "inflammation" of the joint, indicative of an arthritic process)
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