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 Brad Garber's Case Law Update - January 24, 2006 On this date: Actor Ernest Borgnine was born in 1915. In 1918, televangelist Oral Roberts was born. Neil Diamond was born in 1941. John Belushi was born in 1949. In 1968, Olympic gold medal gymnast Mary Lou Retton was born. Roman Emperor Caligula was assassinated, at age 28, in 41 A.D. Ted Bundy, serial killer of about 100 women, was executed in 1989. The rubber heel for shoes was patented by Humphrey O'Sullivan in 1899. In 1922, the "Eskimo Pie" was patented by Christian K. Nelson, of Iowa. The Russian City of St. Petersburg was renamed "Leningrad," in 1924. The first canned beer, "Krueger Cream Ale," was sold by the Krueger Brewing Co., in Richmond, VA, in 1935. 30,000 people were killed by an earthquake, in Concepcion Chile, in 1939. Five lawyers were murdered by Fascists, in Madrid, in 1977. (I know what you're thinking). Joe Montana was named NFL MVP in 1982, after the San Fran 49'ers beat the Bengals in the Super Bowl. The U.S. figure skating championship was won by Scott Davis in 1993. Juli A. Whelchel, 59 Van Natta 75 (2007) (ALJ Crumme) The insurer requesed review of an Order that set aside its de facto denial of Claimant's new or omitted condition claim for a "cervical muscle spasm." (Wait a minute! A "spasm?") On review, the insurer argued that Claimant's cervical muscle spasm was a "symptom," rather than a compensable "condition." The Board observed, as follows: "For purposes of a new or omitted medical condition, a 'condition' is a 'physical status of the body or one of its parts.' Raymond A. Graves, 50 Van Natta 1520, 1522, on recons, 50 Van Natta 1827 (1998), aff'd without opinion, Graves v. Thomas H. Ireland, Inc., 166 Or App 551 (2000)." The Board determined that the medical evidence established that Claimant's muscle spasm was a separate condition from her accepted left shoulder strain. Affirmed Tony J. Poulson, 59 Van Natta 80 (2007) (ALJ Fulsher) This is a case in which the Boardfound Claimant to be not credible, based on its review of the record. Claimant appealed a decision in which SAIF's denial of his L4-5 and L5-S1 disc herniations was upheld. Claimant testified that, on October 17, 2005, he was performing warranty work on a customer's Dodge pickup, and was putting in a governor pressure switch for the transmission. He testified that the truck was suspended a few inches from the ground. When he jumped down from the bumper, and landed on his feet, he allegedly felt low back pain and pain down his left leg. His "injury," of course, was unwitnessed. Claimant's supervisor, however, had a different history (which he obtained from Claimant). Claimant told his supervisor that he had actually injured his back over the prior weekend. Also, work orders clearly revealed that Claimant did not work on the Dodge pickup on October 17. In addition, when Claimant first sought medical care, on October 18, he said nothing to the medical examiner about a work-related injury. Finally, on the 827 Form, Claimant reported that he developed low back pain while he was leaning over a Dodge pickup; he said nothing about jumping down from an elevated height. Affirmed
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