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 Brad Garber's Case Law Update - August 14, 2006 On this date: Meriwether Lewis was born in 1774. In 1940, Dash Crofts was born in Cisco, Texas. Steve Martin was born in Waco, Texis, in 1945. In 1958, Earvin ("Magic") Johnson was born. Henry David Thoreau was jailed, in 1846, for tax evasion. The Oregon Territory was created in 1948. In 1935, the Social Security Act was enacted. The U.S. bombed Cambodia, for the first time, in 1973. In 1974, the U.S. Congress first authorized U.S. citizens to own gold. In 1979, a rainbow in Northern Wales lasted for 3 hours. Milford L. Tarter, 58 Van Natta 1897 (2006) (ALJ Howell) Claimant appealed an order that upheld the insurer's denial of Claimant's L5-S1 condition. On review, Claimant contended that SAIF did not carry its burden of establishing, under ORS 656.266(2)(a), that his November 14, 2003 injury was not the major contributing cause of his disability or need for treatment of his combined L5-S1 disc condition. Claimant had an accepted claim for the condition of "lumbar strain." He then requested that SAIF accept an L5-S1 disc herniation. The Board pointed out that it was Claimant's initial burden to prove that his work injury was a material contributing cause of his need for treatment or disability associated with his L5-S1 disc condition. Claimant tried to argue that, because he already had an accepted claim for a lumbar strain, that condition constituted an "otherwise compensable claim" under ORS 656.266(2)(a), and that the burden of proof shifted to SAIF to show that the major contributing cause of his L5-S1 disc was not the previously-accepted strain. The Board had the following to say: "We do not adopt the ALJ's reasoning that claimant's accepted lumbar strain is an 'otherwise compensable injury' for purposes of a combined condition analysis related to the new or omitted medical condition claim for an L5-S1 disc herniation. For purposes of establishing a new or omitted medical condition claim for his L5-S1 disc condition, claimant cannot rely on the accepted lumbar strain as an 'otherwise compensable condition' to shift the burden of proof to 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-S1disc 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)." Affirmed William J. Lefave, 58 Van Natta 1904 (2006) (Order on Remand) This case came back to the Board from the Court of Appeals. In its prior Order, the Board had determined that SAIF's "encompassed condition" letter to Claimant did not constituted a denial (thus entitling Claimant's attorney to a fee) issued in response to a new medical condition claim. On appeal, the Court of Appeals reiterated its ruling, in Rose v. SAIF, 200 Or App 654 (2005), that an "encompassed condition letter" is not a sufficient response to a new condition claim. In Rose, the claimant argued that, under ORS 656.262(7)(a), a carrier is obligated to formally accept or deny a new medical condition claim, and that a letter indicating that the newly-claimed condition was already encompassed within the scope of claim acceptance is not sufficient. The Court of Appeals agreed with this argument. In short, for purposes of assessing an attorney fee under ORS 656.386(1), an "encompassed" letter has the same effect as a denial. The Board stated, as follows: "Because SAIF's 'encompassed condition letter' was not a proper response under ORS 656.386(1)(b)(C)(i.e., it did not accept or deny the claim as required by ORS 656.262(7)(a)), its failure to respond appropriately within 90 days constituted a de facto denial. Rose, 58 Van Natta at 1606. Accordingly, claimant's counsel is entitled to an attorney fee under ORS 656.386(1)(b)(C) for finally prevailing over a denied claim." Affirmed in part, reversed in part (attorney fee affirmed, penalty reversed)
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