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 Brad Garber's Case Law Update - May 2, 2007 On this date: Pediatrician/author Benjamin Spock was born in 1903. Mick's ex, Bianca Perez Morena de Macias Jagger, was born in 1945. In 1946, Lesley Gore ("It's My Party") was born. Country singer Larry Gatlin was born in 1948. In 1519, Leonardo da Vinci died at the age of 67. In 1972, FBI director/cross-dresser, J. Edgar Hoover, died at age 77. William Herschel discovered the 1st binary star, Xi Ursae Majoris, in 1780. (In other word, one of the "stars" in the Big Dipper/Ursa Major is really two stars). The U.S. Mint stopped minting the 20-cent piece in 1878. In 1890, the Territory of Oklahoma was created. The Pulitzer Prize was awarded to Thornton Wilder in 1938, for "Our Town." In 1949, Arthur Miller won the Pulitzer for "Death of a Salesman." Tennessee Williams won the prize, in 1955, for "Cat on a Hot Tim Roof." In 1974, former Vice President Spiro Agnew was disbarred. Marvin E. Lewis, 59 Van Natta 1068 (2007) (Order on Remand) I previously reported on the Supreme Court's decision in this case, in which the Court determined that the maximum statutorily authorized sanction for a claimant's failure to attend an IME was suspension of benefits until the next IME could be scheduled (and attended). In other words, claim denial is not an option. The Court remanded the matter to the Board to determine whether Claimant could be sanctioned for not cooperating in a deposition, in violation of ORS 656.262(14). Pursuant to the statute, the Board needed to determine whether: (1) Claimant established that he fully and completely cooperated with investigation (the deposition); (2) that, if he failed to cooperate, it was for reasons beyond his control; or (3) that the investigative demands were unreasonable. The deposition was arranged to discuss topics unrelated to Claimant's failure to attend the IME. When defense counsel started to ask questions about Claimant's failure to attend, Claimant's attorney objected on the basis that the questions were not relevant. Claimant's attorney counseled him to not answer the question. The Board, on remand, found the attorney's objection to be appropriate. The Board also found Claimant's reliance on his attorney's counsel to be reasonable and that he, therefore, fully cooperated with the deposition. Noncooperation denials set aside John P. Tye, 59 Van Natta 1101 (2007) (Order on Remand) In a prior decision, the Board determined that Claimant's 15-week seasonal layoff did not constitute an "extended gap" under OAR 436, 060-0025(5)(a) and, as such, must be considered in calculating Claimant's TTD rate. The Oregon Supreme Court found that there were no "extended gaps" in Claimant's employment. Therefore, OAR 436-060-0025(5)(a)(A) was to be applied in determining Claimant's average wage at the time of his November 2001 injury. For the underlying decisions, see John P. Tye, 55 Van Natta 2140 (2003) and Tye v. McFetridge, 199 Or App 529 (2005). Reversed Daniel S. Murray, 59 Van Natta 1105 (2007) (Second Order on Reconsideration) Claimant requested reconsideration, again, after the Board reversed the ALJ's order that awarded a penalty under ORS 656.268(5)(b) and an attorney fee under ORS 656.382(1). Citing Red Robin International v. Dombrosky, 207 Or App 476 (2006), Claimant argued that the Board needed to decide whether there was a "refusal" to close his claim. In Dombrosky, the Court recounted the ALJ's reasoning, as follows: "Citing the board's order in Daniel S. Murray, 56 Van Natta 3389 (2004), the ALJ reasoned that, when presented with a request for closure under ORS 656.268(5)(b), an employer must either close the claim or issue a notice of refusal to close the claim, and that inaction on the part of an employer results in the assessment of a penalty. The ALJ determined that employer's ‘failure to strictly comply' with ORS 656.268(5)(b) was unreasonable and justified the assessment of a penalty under ORS 656.268(5)(d)." The Court found that there must be a "refusal" to close the claim and, if there is such a "refusal," a determination whether that conduct was reasonable must be based on a factual inquiry into the reasonableness of that employer's refusal to close the claim. See Tri-Met, Inc. v. Wolfe, 192 Or App 556 (2004). In short, inaction does not amount to a "refusal" under ORS 656.268(5)(b), if it was reasonable. Affirmed
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