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 Brad Garber's Case Law Update - October 22nd, 2007 On this date: Romantic period classical music composer, Franz Liszt, was born in Hungary, in 1811. John Reed, the journalist who covered the Russian revolution, was born in 1887. LSD promoter, Timothy Leary, was born in 1920. In 1938, actor Christopher Lloyd was born in Connecticut. Actor Jeff Goldblum was born in Pittsburgh, in 1952. On this day, in 1746, Princeton University received its charter. Sam Houston was inaugurated as the first president of the Republic of Texas, in 1836. In 1953, Laos (Cambodia) gained full independence from France. JFK imposed a full naval blockade of Cuba, in 1962, initiating the Cuban Missile Crisis. Jamie Travis, Dcd, 59 Van Natta 2354 (2007) (ALJ Mills) Claimant, decedent's surviving spouse, requested review of an order that denied her benefits. Her husband had died from hantavirus pulmonary syndrome (HPS), as a result of exposure to hantavirus. The primary carrier of the strain of hantavirus to which the decedent was exposed is the deer mouse. So, Claimant had to prove that her husband was exposed to deer mice (in particular, deer mouse feces) at work. Her husband worked as a landscaper. Claimant brought in witnesses who testified that they noticed vole damage around some of their work areas. Voles do not carry the hantavirus. Claimant, nevertheless, argued in effect that, where there are voles, there MUST be deer mice! The Board did not buy this argument and noted that there really was no evidence that the decedent was ever exposed to deer mice at work. After discussing the holdings in Seeley v. Sisters of Providence, 179 Or App 723 (2002), George E. Duarte, 54 Van Natta 2046 (2002), and Shannon J. Vanboven, 56 Van Natta 1962 (2004), the Board determined that Claimant could not carry her burden of proof through the use of statistical analysis. Affirmed Janet Benedict, 59 Van Natta 2406 (2007) (ALJ Bloom) Claimant had an accepted lumbosacral strain from 2002. After an MRI in 2004, Claimant filed a claim for a "new" condition of an L4-5 disc bulge. In setting aside SAIF's denial of the new condition, the ALJ determined that medical evidence established the existence of a combined condition, that Claimant had suffered an "otherwise compensable injury," and that it was up to SAIF to prove that the L4-5 disc condition was not compensable. SAIF appealed. The Board discussed the applicable law, as follows: "Claimant has the burden of proving that her July 2002 work injury was a material contributing cause of her disability or need for treatment of the L4-5 disc bulge with compromise of the right L4 nerve root. ORS 656.005(7)(a); ORS 656.266(1). For purposes of establishing a new or omitted medical condition claim, claimant cannot rely on the already accepted lumbosacral strain condition as an "otherwise compensable injury" to shift the burden of proof of SAIF pursuant to ORS 656.266(2)(a). Colleen K. Roberts, 58 Van Natta 1144 (2006)(although the carrier had accepted a lumbar strain, neither that acceptance nor the medical evidence established an 'otherwise compensable injury' that involved a claimed L5-S1 disc condition); Betty J. King, 58 Van Natta 977 (2006)(for purposes of establishing a new or omitted medical condition claim for a left knee condition, the claimant could not rely on a previously accepted lumbar strain as an 'otherwise compensable injury' to shift the burden of proof under ORS 656.266(2)(a) to the carrier). Rather, claimant must independently establish that the claimed new or omitted medical condition is otherwise compensable; i.e., that the work injury is a material contributing cause of the disability or need for treatment for her L4-5 disc bulge with compromise of the L4 nerve root." The Board went on to find that Claimant did not carry her initial burden of proof. Reversed Moral: Just because you have previously accepted a condition, does not necessarily mean that it is your burden to prove that a newly-claimed condition is NOT compensable. Francisco G. Rodriguez, 59 Van Natta 2422 (2007) (ALJ Kekauoha) On November 14, 2005, Claimant requested acceptance of "chronic chest wall pain as a result of [a] fracture condition." SAIF issued a "No Perfected Claim" letter stating that, because Claimant had requested acceptance of a symptom rather than a medical condition or diagnosis, Claimant had not yet perfected a claim for a new or omitted condition. The Board disagreed. The Board reasoned, as follows: "ORS 656.267(1) requires that 'the worker must clearly request formal written acceptance of a new medical condition or an omitted medical condition from the insurer or self-insured employer.' While claimant's request generally described 'chronic chest wall pain,' whether that request describes a condition, as opposed to merely a symptom, is a question to be resolved when determining compensability. See Maureen Y. Graves, 57 Van Natta 2380, 2381 (2005)(persuasive proof of the existence of the condition is a fact necessary to establish the compensability of a new or omitted medical condition)(emphasis added). In other words, a "No Perfected Claim" letter does not address the 'merits' of whether a claim is for a medical condition or for a symptom. See Loren G. Oswald, 57 Van Natta 903, 904-05 (2005)(Board rejected a carrier's position that a claimant's 'post-aggravation rights' new/omitted medical condition claim was not perfected because the claim was based on a 'symptom,' rather than a 'condition.')." The Board determined that Claimant had, indeed, perfected a "claim," even though it asked for the acceptance of a symptom. Because the merits of the claim had not been addressed, the matter was sent back to Judge Kekauoha. Remanded
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