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 Brad Garber's Case Law Update - June 7, 2007 On this date: Dean Martin was born in 1917. Singer Tom Jones was born in 1940. In 1958, Rodgers Nelson (aka, "Prince") was born. Daniel Boone started exploring the Kentucky Territory in 1769. Sirhan Sirhan was indicted for the murder of Bobby Kennedy, in 1968. In 1981, Bjorn Borg won his 6th French Open by defeating Ivan Lendl. 23-year-old barefoot runner Zola Budd retired from competitive running in 1989. David J. Keller, 59 Van Natta 1335 (2007) (ALJ Somers) The self-insured employer appealed an Order that affirmed an Order on Reconsideration that found that Claimant's left knee injury claim had been prematurely closed. Claimant contested the portion of the Order that declined to award an attorney fee under ORS 656.382(2). The Opinion & Order was affirmed with supplementation regarding the attorney fee issue. With regard to that issue, the Board reviewed the ALJ's reasoning as follows: "Although finding that the employer prematurely closed claimant's left knee injury claim, the ALJ determined that claimant's attorney was not entitled to an attorney fee award under ORS 656.382(2) because his efforts in setting aside the claim closure did not result in an award of compensation. In making that determination, the ALJ distinguished Robert A. Edmondson, 58 Van Natta 2847 (2006), which upheld that an ALJ's assessed attorney fee award where the evidence established that, in setting aside a closure, the claimant would be entitled to ongoing temporary disability, thus satisfying the ‘compensation awarded' requirement of ORS 656.382(2). The ALJ reasoned that, unlike Edmondson, the evidence did not establish that claimant would be entitled to temporary disability as a result of the reconsideration order's setting aside the closure notice." The Board agreed with this reasoning. Affirmed In other words: If the setting aside of a Notice of Closure does not result in increased compensation to the claimant, the attorney does not get a fee. Michael C. Van der Vaarte, 59 Van Natta 1370 (2007) (ALJ Poland) Claimant had an ongoing on-the-job and off-work relationship with a person called "Griffin." They had been in off-work altercations before. On March 8, 2005, as Claimant was leaving work, Griffin was in the parking lot and a confrontation ensued. Ultimately, Claimant suffered a fractured right hand as a result of the altercation. The employer had an express rule stating that fighting or threatening violence in the workplace may result in disciplinary action, including termination. Both Claimant and Griffin had been warned, in the past, about fighting with each other. After hearing, the ALJ determined that Claimant's injury arose out of, and in the course of, employment. She set aside SAIF's AOE/COE denial. On review, the Board found that Claimant's injury "arose out of" his employment, but was not sustained "in the course of" his employment. The Board astutely noted, "…[C]laimant's job working in a bed warehouse did not involve working in the parking lot or fighting with a co-worker." After considering all relevant factors, the Board concluded that Claimant's injury resulted from an activity beyond the boundaries of his employment. Reversed Rita B. Hall, 59 Van Natta 1380 (2007) (ALJ Sencer) Following completion of the briefing to the Board, Claimant submitted a memorandum of supplemental authority arguing that the Oregon Court of Appeals' recent ruling in White v. Boldt Co., 212 Or App ___ (April 11, 2007) applied to the case. The Board observed, as follows: " * * * Briefs or arguments submitted after the expiration of the briefing schedule are not considered unless supplemental briefing is authorized. OAR 438-011-0020(2); Joe R. Ray, 48 Van Natta 325 (1996). The partied may, however, bring to our attention recent decisions issued after completion of the briefing schedule. Braulio W. Sanchez, 53 Van Natta 584, 585 (2001); Betty L. Juneau, 38 Van Natta 553 (1986), aff'd without opinion 85 Or App 219, rev den 303 Or 590 (1987). Here, the decisions in White and Lewis were issued after the briefing schedule ended. Therefore, claimant acted properly in bringing the decisions to our attention; however, we did not consider the arguments submitted in addition to the notation of recent case law." In other words: Tell the Board about any recent decision that might have an impact on the case, but don't waste your time writing an argument about how the decision impacts the case. Sean H. McQuillan, DCD, 59 Van Natta 1393 (2007) (ALJ Donnelley) The cohabitant of the deceased worker, as well as the personal representative of his estate, requested review of the ALJ's order that found that Claimant was not a statutory beneficiary of the deceased worker, and upheld the employer's denial of her claim for survivor benefits. The Board stated, as follows: "We adopt and affirm the ALJ's order. See Sworden v. Alcoa-Reynolds Co., 210 Or App 721 (2007)(woman who cohabited with but was not married to the deceased worker, was not a statutory beneficiary entitled to survivor's benefits because she did not have an underage or dependent child with the decedent; personal representative (adult child) of the decedent lacked standing to pursue a hearing under ORS 656.218)." Affirmed Moral: If you want benefits, get pregnant...
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