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 Brad Garber's Case Law Update - December 7, 2006 On this date: Mary Stuart, Queen of Scots, was born in 1542. The creator of the world-famous wax museum, Madame [Marie Grosholtz] Tussaud, was born in 1761. In 1873, writer Willa Cather was born. Portland, Oregon actor, Jack Pennick, was born in 1895. In 1923, actor Ted Knight was born. Actor, Ellen Burstyn, was born in 1932. In 1942, Harry Chapin was born. Johnny Bench, baseball catcher for the Reds, was born in 1947. Songwriter, Tom Waits, was born in 1949. In 1956, Larry Bird was born. James Madison was elected U.S. President in 1808. Martin Van Buren was elected in 1836 (8th President). Jesse James, and his gang, robbed a bank in Gallatin, MO, and killed one, thus starting the legend, in 1868. In 1877, Thomas Edison demonstrated the gramophone. In 1917, the U.S. became the 13th country to declare was against Austria during WWI. In 1941, the Japanese bombed Pearl Harbor. The first microwave oven was patented in 1945. Chiang Kai-shek fled mainland China, to Taiwan, in 1949. In 1973, Wings released "Band on the Run." In 1985, Bo Jackson received the 51st Heisman Trophy. Yasser Arafat formally recognized Israel as a sovereign country in 1988. Scarlet M. Allen, 58 Van Natta 3049 (2006) (ALJ Tenenbaum) Claimant appealed a determination that her request for hearing was untimely filed, and dismissed her appeal. The employer contested the ALJ's evidentiary rulings that denied its motions to continue the hearing, and admit additional evidence. Employer's denial of Claimant's occupational disease claim was mailed to Claimant on July 12, 2004. The 60-day appeal period ran on September 10, 2004. The request for hearing was deposited in the mail, by Claimant's husband, on September 9, 2004. The Board did not receive the request for hearing, however, until September 14, 2004. The envelope in which the hearing request was sent was postmarked September 13, 2004. Employer contended that Claimant's request for hearing was untimely filed. At the hearing, the ALJ allowed a continuance for the deposition of a postal official regarding postal procedures. In October 2005, after unsuccessfully attempting to schedule a deposition, the employer asked for the hearing to be reset so that a postal official could be subpoenaed. On January 4, 2006, five days before the rescheduled hearing, the postal official received a subpoena. He did not show up for the hearing on January 9, 2006. Employer moved for another continuance, which was denied by the ALJ. Employer attempted to introduce a letter from another postal employee, and Claimant objected to its admission. That objection was sustained. On appeal, Employer contended that the ALJ abused her discretion by denying its motions to continue the hearing and to reopen the record for the taking of the postal supervisor's testimony in a continued hearing. The Board countered with the following: "We acknowledge that the employer attempted to obtain deposition testimony on postal procedures during the eight months between the initial and continued hearings. Nonetheless, we consider eight months to represent more than sufficient time to obtain such evidence. We also recognize that the employer cannot be held responsible for the failure of a subpoenaed witness to appear at a hearing. However, because the employer decided to forego the taking of the witness' testimony by means of deposition and instead chose to subpoena the witness just five days prior to the scheduled hearing, it was assuming a risk that the witness might not appear." Ultimately, the Board found no abuse of discretion in denying Employer's various motions. With regard to the late filing of Claimant's request for hearing, the Board relied on the undisputed evidence presented by Claimant and her husband, that the request for hearing was deposited in the mail on September 9, a day before the expiration of the appeal period. It observed, "In the absence of evidence regarding standard post office mailing procedure, the postmark date on the envelope carrying claimant's hearing request does not persuasively establish timely filing." The Board found that Claimant persuasively rebutted the presumption of untimely filing. Consequently, that part of the Opinion & Order, that dismissed Claimant's request for hearing as untimely, was reversed. Reversed and Remanded Maria Mendez, 58 Van Natta 3052 (2006) (ALJ Myzak) Claimant requested a hearing from an order that upheld the insurer's denial of Claimant's new/omitted medical condition claim for left thoracic and triceps strain conditions. The insurer requested review of that aspect of the Order that set aside its denial of Claimant's new/omitted medical condition claim for a C4-5 disc condition. On review, the Board affirmed the denial of the thoracic and triceps conditions. Employer originally accepted a nondisabling left forearm strain. Claimant subsequently asked that the claim acceptance be expanded to include the condition of C4-5 disc protrusion. Employer expressly denied the compensability of that condition. At the hearing, the ALJ asked Claimant's counsel if Claimant was withdrawing the claim for the C4-5 condition. Claimant's counsel responded that that was correct. Because of this concession, the ALJ decided that there was no claim for the condition and, therefore, that Employer's denial was null and void! On appeal, Employer argued that it's denial was certainly not null and void when it was issued, and that it should stand. The Board noted that, at the time Claimant made the claim for the new/omitted condition, she was receiving treatment for a cervical condition and that Employer was under a statutory obligation to either accept or deny the claim. Just because Claimant decided, at the last minute, to pursue that claim, did not render Employer's legally appropriate denial null and void. Affirmed in part, reversed in part
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