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 Brad Garber's Case Law Update - April 17, 2007 On this date: J.P. Morgan was born in 1837. In 1894, table-pounder Nikita Khrushchev was born. Novelist/playwright Thornton Wilder was born in 1897. In 1923, newscaster Harry Reasoner was born, in Dakota City, Iowa. Martin Luther was excommunicated from the Roman Catholic Church in 1521, and started the Protestant Reformation. The first commercial fishery was started in 1629. In the first professional baseball game, in 1869, the Cincinnati Reds beat the Cincinnati "amateurs" (24-15). The National Football League was formed in 1920. In 1964, the Ford "Mustang" went on sale, for $2,368. Sirhan Sirhan was convicted of assassinating Robert F. Kennedy, in 1969. "The Band" performed its first concert in 1969. In 1978, Bill Rodgers won the Boston Marathon with a time of 2:10:13. Canada adopted its own constitution in 1982. In 1983, Nolan Ryan struck out his 3,500th batter. In 1983, Grete Waitz set the womens world record, in the marathon, with a time of 2:25:29. This record was broken by Ingrid Kristiansen, in 1989, with a time of 2:24:33. Scot B. Barnes, 59 Van Natta 916 (2007) (ALJ Mills)
Claimant appealed from an Opinion & Order that found his tooth fracture noncompensable. Claimantâ's injury occurred on April 28, 2003. He came into contact with an electric wire and received a shock and electric burn to his left upper extremity. His claim was accepted. A year later, he went to a dentist because he was experiencing tooth pain. The dentist, "Dr. Stenger," used fiber optics to explore Claimantâ's teeth for cracks in the enamel. Finding nothing, he referred Claimant to "Dr. Dierks," an otolaryngologist. After taking x-rays of Claimantâ's teeth, Dr. Dierks diagnosed "possible pulpitis tooth #15 vs. subtle crack." Then, "Dr. Cutrera" performed a root canal on June 8, 2004. Dr. Cutrera, an endodontist, noted that there were several cracks in Claimantâ's teeth "consistent with trauma of opposing teeth striking together during accident that he suffered." So, Claimant made a new condition claim for his cracked tooth. As usual, resolution of the issue of compensability hinged on the persuasiveness of the medical opinions. I simply report the case because of the implausibility of it all. Affirmed
(Warning: If a worker gets injured and happens to grind his/her teeth as a reaction to pain, watch out!) Teresa S. Lindsey, 59 Van Natta 921 (2007) (ALJ Rissberger)
SAIF requested review of a portion of Judge Rissbergerâ's Opinion & Order that awarded an insurer-paid fee under ORS 656.382(2) for SAIFâ's unsuccessful challenge to an Order on Reconsiderationâ's finding of premature closure. After affirming the Order on Reconsideration, the ALJ awarded an insurer-paid attorney fee under ORS 656.382(2). On review, SAIF argued that ORS 656.382(2) does not authorize an attorney fee award because the reconsideration order did not "award" compensation. ORS 656.382(2) provides for an award of attorney fees where a carrier requests a hearing, and the ALJ, Board or court finds that "the compensation awarded to a claimant should not be disallowed or reduced." The Board found that a determination by the Appellate Review Unit, that Claimantâ's claim was prematurely closed, did not determine the extent of Claimantâ's permanent impairment. So, SAIFâ's challenge to the ARUâ's order did not challenge the amount of Claimantâ's award. A rescission of the Notice of Closure, by the ARU, did not result in an "award of compensation." Therefore, in successfully defending against SAIFâ's appeal of the Order on Reconsideration, Claimantâ's attorney did not preserve a prior award of compensation. Because of this, he was not entitled to an insurer-paid fee. Reversed
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