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 Brad Garber's Case Law Update - May 20, 2007 On this date: The architect of the U.S. Capitol building, William Thornton, was born in 1759. In 1818, the founder of Wells Fargo, William George Fargo, was born. Jimmy Stewart (aka, James Maitland) was born in 1908. In 1944, Joe Cocker was born. Shoes were first made for both right and left feet, in 1310. The first Hawaiian legislative assembly convened in 1845. The cornerstone of the University of Washington was laid, in 1861. In 1868, the Republican National Convention nominated U.S. Grant for President. Levi Strauss first marketed blue jeans with copper rivets in 1874 (sold for $13.50 per dozen). Codell, Kansas was hit by a tornado in 1916 (it was subsequently hit, on the same date, in 1917 and 1918). At 7:40 am, in 1927, Charles Lindbergh took off from New York, to fly to Paris. In 1932, Amelia Earhart left Newfoundland to be the 1st woman to fly across the Atlantic. Chiang Kai-shek became the president of Nationalist China (Taiwan) in 1954, after being chased off the mainland by Mao Tse Tung. Drummer Peter Criss left "Kiss" in 1980. The Hubble Space Telescope sent its first photos of outer space back, in 1990. Michael Jordan was named MVP in 1991. Nelson v. SAIF, 0402127; A130157 (May 16, 2007) Claimant was injured while descending from a roof. His claim was denied on the basis that he was a "nonsubject" worker. ORS 656.005(28); ORS 656.027. After losing before the Board, Claimant appealed to the Court of Appeals. Employer is an Oregon corporation with its headquarters in Eugene. At all material times, Claimant lived in Michigan. Claimant's job duties included traveling throughout the eastern and Midwestern Unitied States to meet with customers and other sales managers. He was paid by direct deposit from the Eugene office and Employer withheld Federal and Michigan state taxes from Claimant's paychecks. During the two years that he worked for Employer, Claimant only visited Oregon twice. He was injured in Ohio, while climbing down off a roof. He filed claims in both Michigan and Oregon. SAIF denied the Oregon claim on the basis that Claimant was not a subject worker under ORS 656.126. After hearing, the ALJ set aside SAIF's denial. The Board reversed the Opinion & Order, reasoning that Claimant was "permanently" employed outside Oregon and that ORS 656.126 did not apply. The absurd example given by the Board was, "â...[A] person living and working in India for an Oregon-based corporation, who was hired by the corporation but never lived or worked in Oregon, would be entitled to Oregon workers' compensation benefits if injured on the job in India." Something about that potential scenario just did not make sense. Claimant's argument, before the Court was, "Residence in Oregon is not a condition for coverage and the Act does not exclude coverage for subject workers who work outside the state." The Court, however, agreed with the Board and SAIF, stating, "Specifically, we agree with the board that, notwithstanding the ostensible unqualified breadth of ORS 656.027, the totality of the statutory scheme – and ORS 656.126(1) particularly – conclusively establishes that persons who are employed to work permanently outside of Oregon are not covered under the Act." Affirmed Mills v. The Boeing Co., 0400942; A130079 (May 16, 2007) The Board reversed an Opinion & Order that awarded Claimant benefits, penalties and attorney fees. Claimant appealed. On May 5, 2003, while working for Employer, Claimant slipped off a ladder and fell about three feet. He sought treatment for his right hip. His attending physician assessed arthritis of the hip. On August 11, 2003, the insurer denied the compensability of Claimant's claim for benefits. On the denial, the insurer identified an incorrect date of injury of May 9, 2003. Claimant did not request a hearing within 60 days, as required under ORS 656.319. In fact, he did not file a request for hearing until February 5, 2004. After hearing, the ALJ determined that, because the insurer's denial made reference to an incorrect and nonexistent date of injury, it was of no binding legal effect! The ALJ held that Claimant could proceed on a subsequently filed request for hearing from a de facto denial. Employer appealed, and the Board reversed the Opinion & Order, reasoning that regardless of the typographical error, the denial had denied the only claim that Claimant had filed, so there was no confusion as to the insurer's intent. On appeal, the Court agreed with this reasoning. Because Claimant had not appealed the denial, he was precluded from raising the same issues in his subsequent de facto denial request for hearing. Affirmed Roseburg Forest Products v. Castillo, H04173; A130605 (May 16, 2007) This is another case in which a strict application of OAR 436-010-0250 precluded the employer from disputing the reasonableness and necessity of elective surgery because it did not respond to the request for elective surgery within seven (7) days, as required by subsection (3) of that rule. See Roseburg Forest Products v. Humbert, 212 Or App 285 (2007). Affirmed
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