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 Brad Garber's Case Law Update - December 11, 2006 On this date: Chronicly malcontent writer, Aleksandr Solzhenitsyn, was born in 1918. David Gates ("Bread") was born in 1940. In 1946, actor Teri Garr, was born. Otherwise, not too many famous people (who anyone might know) were born on this date. Singer/songwriter, Sam Cook, was killed (age 33) in 1964. In 1620, 103 Mayflower pilgrims landed on Plymouth Rock (which was previously named by the American Indians, to honor an automobile they were making). Indiana became the 19th state, in 1816. Laughing gas (nitrous oxide) was first used by dentists in Hartford, CT, in 1844. ("Har, har, har! Drill it, Doc!") The first transatlantic radio signal was sent, by Marconi, from Cornwall, England to Newfoundland, in 1901. In Enterprise, AL, a monument to the bollweevil was dedicated in 1919. Jazz singer, Josephine Baker, performed in Amsterdam, in 1926. In 1941, Italy and Germany declared war on the U.S.Hank Williams started recording on the Sterling label, in 1946. In 1951, Joe DiMaggio announced his retirement. In 1961, Elvis's "Blue Hawaii" album went No. 1 and stayed there for 20 weeks. JFK sent U.S. military helicopters and crews to South Vietnam, in 1961. Nothing happened after that.... Michael S. Gallegos, 58 Van Natta 3079 (2006) (ALJ Wren) SAIF accepted a "tear of the posterior horn, right medial meniscus." When it closed the claim, it awarded 6% scheduled PPD, based on loss of flexion and meniscal surgery.Claimant requested reconsideration and the appointment of a medical arbiter. The arbiter found some loss in range of motion, but attributed it to preexisting degenerative changes. The Appellate Review Unit awarded 5% scheduled PPD, based on Claimant's partial meniscectomy, but awared not value for the loss in range of motion because the medical arbiter attributed that loss to the preexisting changes. It reduced Claimant's total PPD award, from 6% to 5%. Claimant requested a hearing. At hearing, Claimant argued that SAIF had really accepted a "combined condition" consisting of the work injury and the preexisting degenerative changes and that, because SAIF never issued a current (combined) condition denial prior to closure, it was liable for all disability resulting from the total combined condition. On review, SAIF contended that it never accepted a combined condition. The Board disagreed, observing, "Although SAIF did not explicitly accept a combined condition, its failure to use 'magic words' in its acceptance does not mean that, as a factual matter, it did not accept a combined condition." See Columbia Forest Prod. v. Woolner, 177 Or App 639, 647 (2001)(a notice of acceptance may accept a combined condition despite the failure of the notice to specifically state acceptance of a "combined condition"). The Board looked to the medical evidence to determine whether the carrier, in fact, accepted a combined condition. See Lee R. Back, Jr., 54 Van Natta 2414 (2002)(accepted hearing loss was a combined condition although the carrier had not explicitly accepted a combined condition). In this case, Dr. Tobin (an orthopedic surgeon) had explained that Claimant's meniscal tear was a combined condition resulting from both the work incident and a preexisting arthritic degenerative condition. There was no contrary medical evidence to indicate that the meniscal tear was not the result of a combined condition. SAIF apparently had this evidence when it accepted, only, the meniscal tear. Because of this, the Board found that SAIF's acceptance was really a combined condition acceptance. Because of this, all permanent impairment associated with the combined condition was rated. Affirmed Jason P. Shackleton, 58 Van Natta 3084 (2006) (ALJ Hoguet) This is an AOE/COE case in which Claimant was injured in a motor vehicle accident while on the way to a job site in Warm Springs, Oregon. Applying the "going and coming" rule, the ALJ concluded that, because the MVA occurred while Claimant was on his way to work, his injuries were not compensable because they did not occur in the course of employment. On review, Claimant contended that the claim fell within an exception to the "going and coming" rule because he was paid compensation for his travel time, in addition to his regular wage. In agreeing with Claimant, the Board cited the following, from Livingston v. State Industrial Acci. Com., 200 Or 468 (1954): "We hold that if an employer pays for the employe's time during his travel from the job site to his home, the relationship of emloyer and employee continues during that period of time, and an injury occurring during the course and, in particular, the time of such travel from accidental causes, arises out of and in the course of the employment, and is compensable." Claimant's "travel pay" did not equal his hourly wage, but the Board found this to be immaterial. The fact remained that Claimant was paid by the employer to be on the road. While Claimant was employed under a Master Labor Agreement that provided that the employer's workers were not in the "course and scope" of their employment unless they were being paid their "applicable hourly wage," the Board pointed out that ORS 656.236(8) prevents a release of a worker's rights to compensation under ORS Chapter 656, unless it is by a CDA or a release pursuant to ORS 656.593. In other words, the bargaining agreement could not abrogate rights conferred by ORS Chapter 656. Reversed
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