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 Brad Garber's Case Law Update - November 6, 2006 On this date: Charles Dow, the co-founder of the Dow-Jones stock index and 1st editor of the Wall St. Journal, was born in 1851. In 1854, John Phillip Sousa, was born. The inventor of the sport of basketball, James Naismith, was born in 1861. In 1916, Ray Conniff, the director of the "Ray Conniff Singers," was born. Actor Sally Field was born in 1946. Rocker (Eagles) Glenn Frey was born in 1948. Ahnold's wife, Maria Shriver, was born in 1955. In 1850, Hawaii obtained its first fire engine. Abraham Lincolnwas elected as the 16th Presidentin 1860. Benjamin Harrison beat President Grover Cleveland to becomePresident, in 1888. The Boshevik Revolution began in 1917. In 1928, Herbert Hooverbeat Alfred E. Smith for the Presidency. In 1962, Edward Kennedy was first elected as a Massachusetts senator. Ronald Reagan beat Walter Mondale, 49-1, in 1984. Barbara J. Baez, 58 Van Natta 2711 (2006) (ALJ Brown) ALJ Brown concluded that Claimant had not perfected an aggravation claim. Claimant appealed this determination to the Board. To perfect an aggravation claim, ORS 656.273(3)(1995) provides that an aggravation claim must be "in a form and format prescribed by the director and signed by the worker or the worker's representative," and that the claim be "accompanied by the attending physician's report establishing by written medical evidence supported by objective findings that the claimant has suffered a worsened condition attributable to the compensable injury." A claim form is not "accompanied by" the required medical report if the medical report arrives after the claim form. See Teri L. Caouette, 52 Van Natta 767 (2000). In this case, the attending physician signed an 827 form, checking the "Report of aggravation of original injury" box. In the "notes" section of the form, the physician indicated that Claimant had edema and reproducible pain, and that an MRI scan had shown disruption of an annular ligament at the right radial head of Claimant's elbow. The physician did not indicate that the condition constituted a worsening of Claimant's compensable injury. That conclusion was offered, later, in a report generated by Claimant's attorney. The ALJ, and the Board, did not consider this "clarifying" report to satisfy the requirements of ORS 656.273(3). Affirmed Ernest A. Brown, 58 Van Natta 2741 (2006) (ALJ Fulsher) Claimant appealed this one, pro se, after his request for hearing was dismissed. In January 2005, Claimant requested a hearing alleging nonpayment of a DCS from 1990. The hearing was scheduled for 9:00 am, November 16, 2005, in Eugene. On the day of the hearing, a half hour went by and Claimant was not present. Employer made a motion to dismiss under OAR 438-006-0071(2), for Claimant's failure to appear. Employer's motion was granted. Five minutes later, Claimant appeared. By that time, the employer's subpoenaed witness had left. Claimant lives in Riddle, Oregon, about 30 miles south of Eugene. He explained that he was confused about the location of the hearings office. The ALJ explained to Claimant that confusion did not rise to the level of an "extraodinary circumstance" that would justify postponement of the hearing, and that his hearing request had been dismissed. Claimant appealed. On appeal, the Board discussed its prior holdings, as follows: "Generally, we have found that a claimant's confusion regarding the time and place of hearing is not an 'extraordinary circumstance' that justifies the postponement or continuance of a scheduled hearing. See Valeria Cabrera-Gallardo, 58 Van Natta 566 (2006)(the claimant's inability to locate the building where her hearing was scheduled was not an extraordinary circumstance); Nancy A. Rodriguez, 55 Van Natta 2394 (2003)(the claimant's mistaken belief that she was to participate by telephone was not an extraordinary circumstance); Dorothy M. Moody, 54 Van Natta 1364 (2002)(forgetting to attend the hearing was not an extraordinary circumstance); Rolando M. Garcilazo, 49 Van Natta 620 (1997)(the claimant's confusion over the time of the hearing was not an extraordinary circumstance)." The Board, this time around, sympathized with Claimant and his efforts to make it to the hearing on time. Claimant, it turns out, had arrived at the Eugene hearings office on time, but he accidentally locked his keys in his car, with the engine still running. He spent some time, trying to figure out how to get into his car to turn off the engine. That, apparently, was why he was late. Before arriving at the hearings office, Claimant also phoned the office to report that he was running late. He had to leave a voice mail message, because no one answered the phone. Under the circumstances, the Board determined that Claimant had made diligent efforts to appear for hearing on time. Reversed and Remanded Adan R. Gallardo, 58 Van Natta 2775 (2006) (ALJ Herman) This is an interesting appeal in which four out of the five Board members reviewed SAIF's appeal. Board Chair, Herman could not participate, so the other four members reviewed the case. Because there was a tie that could not be broken, the Opinion & Order was affirmed. The issue was whether ALJ interpreted the terms of a Stipulation correctly, as requiring SAIF to pay certain medical bills. By cross-request for review, Claimant alleged entitlement to penalties and fees. Because Board members Lowell and Langer could not agree with Board members Kasubhai and Biehl, the Opinion & Order was affirmed. See Darren K. Tirral, 58 Van Natta 2108 (2006); Bailey v. Lewis Farm, Inc., 207 Or App 112 (2006)(decision affirmed by an equally divided court). Affirmed
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