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 Brad Garber's Case Law Update - April 5, 2007 On this date: Actor Spencer Tracy was born in Milwaukee, WI, in 1900. Bette Davis was born in 1908. In 1916, Gregory Peck was born. Tina Maria Stone, who set a record by running 15,472 miles in one year, was born in 1934. In 1937, General Colin Powell was born. Eric Burdon ("War") was born in 1941. Howard Hughes died, at age 72, in 1976. Beat poet Allen Ginsburg died, at age 80, in 1997. George Washington cast the first presidential veto, in 1792. Apple cider was patented in 1806. The first modern Olympic Games officially opened, in Athens, in 1896. Julius and Ethel Rosenberg, atomic bomb spies, were sentenced to death in 1951. "Lava Lamp Day" was celebrated, for the first (and last?) time, in 1965. Rex Harrison and Julie Andrews won the 37th Academy Awards, for "My Fair Lady." The World Trade Center opened in 1974 (110 stories tall). Kareem Abdul-Jabbar broke Wilt Chamberlain's all-time scoring record of 31, 419 points (31, 421), in 1984. In 1989, Ashley Koch (a new friend) was born. Veronica T. Hanlon, 59 Van Natta 843 (2007) (ALJ Spangler) In this case, the Board upheld an employer's combined condition denial based upon the persuasiveness of the employer's medical expert. Claimant sustained a compensable L4-5 herniated disc in 1993. As a result, she underwent a discectomy in 1994. In 2004 she presented to the emergency room with increased pain and suffering. She was found to have a recurrent disc herniation at L4-5. This was verified by MRI. Another surgery was performed in December 2004. The employer accepted the herniated disc in December 2006, and then modified it acceptance to include a combined L4-5 arthritic disc condition. The employer then denied the condition as of May 2005 on the theory that the work injury was no longer the major contributing cause. Medical causation and "combining" issues are complex questions requiring expert medical evidence for their resolution. Barnett v. SAIF, 122 Or App 279, 283 (1993). In evaluating medical opinions, the Board relies on opinions that are both well reasoned and based on accurate and complete information. Somers v. SAIF, 77 Or App 259, 263 (1986). In this case, Employer's expert had personally reviewed five MRI studies taken over the course of the claim. It was his opinion that Claimant's October 2004 work-injury was no longer a material or significant contributing factor to the work-related condition, after the December 2004 surgery. He based his opinion on a March 2005 MRI showing no further disc problems. The Board found this opinion persuasive, dismissing Claimant's expert's opinion, based on the fact that he had not personally reviewed the March 2005 MRI. Reversed
Daniel S. Murray, 59 Van Natta 853 (2007) (Order on Remand) This case was on remand from the Court of Appeals, after the Court reversed the Board's prior order. In that order, the Board affirmed the ALJ's order that assessed a penalty under ORS 656.268(5)(d) for the insurer's alleged failure to timely respond to Claimant's request for claim closure pursuant to ORS 656.268(5)(b), and awarded Claimant's attorney $5,000, under ORS 656.382(1) for an alleged unreasonable resistance to the payment of compensation. Liberty Northwest appealed. The insurer accepted all that it was asked to accept. On May 19, 2003, Claimant underwent a "closing examination" by his attending physician. The insurer did not receive a copy of the closing examination report until July 14, 2003. This was after Claimant requested claim closure (having reviewed the closing report) on July 10, 2003. On July 22, the insurer issued a Notice of Closure. So, the insurer closed the claim thirteen (13) days after it was asked to close the claim, and about eight (8) days after it received a copy of the closing examination report. The ALJ found that the insurer's failure to close the claim, within ten (10) days of Claimant's request for closure, pursuant to ORS 656.268(5)(b), was unreasonable. The ALJ assessed a penalty and awarded Claimant's attorney $5,000. The Board affirmed. ORS 656.268(5)(b), however, provides that a penalty shall be assessed "if the correctness of that notice of closure or refusal to close is at issue in a hearing on the claim and if a finding is made at the hearing that the notice of closure or refusal to close was not unreasonable." The focus should be on the reasonableness of the insurer's actions. See Red Robin International v. Dombrosky, 207 Or App 476 (2006). The Court of Appeals remanded this case to the Board to address whether the insurer's actions were unreasonable, under the circumstances of this case. On remand, the Board found that the insurer's closure, 13 days after receiving the information it needed to close the claim, was not unreasonable. DUH!
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