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 Brad Garber's Case Law Update - September 29, 2006 On this date: Gene Autry was born in 1907. In 1929, Bob Newhart was born. Jerry Lee Lewis was born in 1935. Sportscaster Bryant Gumbel was born in 1948. In 1956, Olympic gold medalist in the 1500 meter (mile), Sebastian Coe, was born. Microbiologist Louis Pasteur died in 1895. The first U.S.Congress adjourned in 1789. The sport of tennis was first mentioned in an English sporting magazine, in 1793. In 1890, the NY Metropolitans beat the Washington Nationals in 5 innings, in the first professional baseball game. The first night football game was played in 1892, in Mansfield, PA. The Rolling Stones went on their first concert tour, in 1963, opening for Bo Diddley & the Everly Brothers. The U.S. beat Europe (14 - 13) to win golf's Ryder Cup, in 1991. Weyerhaeuser Co. v. Rich, 04-06032; A128920 (September 27, 2006) Claimant requested a replacement of his hearing aid after he lost it. Employer disputed compensability and Claimant appealed Employer's denial to the Department. The Department ordered Employer to pay for the replacement. Employer sought reconsideration, arguing that "jurisdiction" over the dispute rested with the Board and not the Department. The Department stayed its order and transferred the matter to the Board for resolution. An ALJ, then, determined that the Board did not have jurisdiction over the matter and transferred the matter back to the Department. The Board decided that the issue before it did not involve a question of causation but, rather, concerned a dispute about whether the replacement of Claimant's hearing aid concerned "excessive" treatment. Before the Court, Employer continued to argue that the issue presented was one of causation and, as such, constitued a "matter concerning a claim" underORS 656.704(1)(a). The Court disagreed and held that Employer's contention that is was not required to provide Claimant with a replacement hearing aid fell within ORS 656.704(3)(b)(B) and was not "a matter concerning a claim." The matter fell within the Department's jurisdiction. Affirmed Oregon Drywall Systems, Inc., 02-05373; A127055 (September 27, 2006) In this case (reported on, previously), the Employer accepted a combined condition on December 13, 2002. It wrote: "This letter is to notify you that as of this date, we are classifying your claim as disabling and are accepting your claim for the following condition(s): Acute Cervical Muscle Strain which has combined with pre-existing, unrelated, and non-compensable Cervical Degenerative Disc Disease." Three days later, it issued a combined condition (current condition) denial. It had placed itself in the position of having to prove a change in condition or circumstances between December 13 and December 16. The Board found that it did not show such a change. Employer appealed to the Court. This case is instructive for the following discussion by the Court: "In seeking to provide for consistency amoung claims, the board has attempted to identify a 'baseline' for evaluating whether there has been a change in a worker's condition, and has held that the effective date of the acceptance of the combined condition provides that baseline. So, for example, the board has held that when the employer's acceptance of the combined condition expressly refers to the date of injury, the effective date of the acceptance is the date of injury, and the claimant's condition at the time of the injury is the baseline for determining whether there has been a change in the worker's condition. John J. Aschmeller, Jr. 54 Van Natta 743 (2002). When the acceptance does not specify an effective date for acceptance of the combined condition different from the date of the original acceptance, the board has held that the acceptance of the combined condition is deemed to supersede and augment the initial acceptance. John J. Shults, 53 Van Natta 383 (2001). When, however, as here, the emloyer's modified acceptance expressly states that the combined condition was accepted 'as of this date,' the board has said that the effective date of the acceptance of the combined condition is the date of the modified acceptance and does not relate back to the initial acceptance. Madine F. Warden, 54 Van Natta 2032, on recons, 54 Van Natta 2346 (2002). Here, the board reasoned that the date of the notice of modified acceptance is the effective date of the acceptance of the combined condition and is also the baseline for determining whether there has been a change in claimant's circumstances or condition such that the claim may be closed." Affirmed Yet another "form over function" result
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