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 Brad Garber's Case Law Update - November 15, 2006 On this date: Georgia O'Keeffe was born, in Sun Prairie, Wisconsin (not far from Spring Green) in 1887. Tennessee senator Howard Baker was born in 1925. In 1929, actor Ed Asner was born. English singer Petula Clark was born in 1932. Anthropologist Margaret Mead died, at age 76, in 1978. The baby with the baboon heart, "Baby Fae," died in 1984. Charlie Mason and Jeremiah Dixon started surveying the line between Pennsylvania and Maryland in 1763. The Articles of Confederation were adopted by the Continental Congress in 1777. Pikes Peak was "discovered" by Zebulon Pike in 1806. In 1881, the American Federation of Labor (AFL) was founded in Pittsburgh, PA. In 1939, the Nazis began the mass murder of Warsaw Jews. The 1st unemployment check was issued, by the Social Security Administration, in 1939. In 1969, Janis Joplin was accused of (oh no!!) "vulgar and indecent" language, in Tampa, FL. In 1990, record producers confirmed that the group "Milli Vanilli" did not sing on their own album. (I never bought that one) Columbia River Dairy v. Sepulveda, 03-06837; A128649 (November 8, 2006) Employer sought review of the decision of the Board that found Claimant's foot injury compensable. As you may recall, this is one I reported on, previously. Claimant stuck his foot under the front tire of his supervisor's truck, intentionally, then filed a claim after the truck rolled over it. Claimant performed this act as a rather belligerent and aggressive way of trying to prevent his supervisor from driving away after an argument. The Board found that Claimant's foot injury arose out of and in the course of his employment. On appeal to the Court, the employer contended that there was no part of Claimant's job that placed him at risk of injury for intentionally placing his foot under the tire of a vehicle. (Hmm....seems reasonable to me). The Court, like the Board, did not see the argument as reasonable, however. The Court observed: "A worker's fault in causing an accidental injury has no place in the Oregon workers' compensation scheme and is irrelevant in determining a worker's entitlement to compensation. [citation omitted] As the board found, claimant did not intend to cause himself harm. Thus, claimant's fault, if any, in causing his injury, is of no consequence." Affirmed Query: What if the employer admitted that it intentionally injured Claimant, thus removing the claim from the coverage of the act? Then, Claimant would need to file a negligence action in civil court and try to overcome the affirmative defense of comparative negligence. Justa wild thought.... Maybe the employer could, then, be charged with assault. Hmmmm..... Karen M. Godfrey, 58 Van Natta 2892 (2006) (Order on Remand) The Court reversed the Board's order in Karen M. Godfrey, 56 Van Natta 1284 (2004), that affirmed an ALJ's order that found Claimant's claim to be untimely filed under ORS 656.265. Concluding that Claimant's oral report of injury, the day after the alleged injury, qualified as proper notice of the injury to the employer, the court held that the Board erred in finding that Claimant failed to timely provide notice of injury to her employer. On remand, the employer argued that Claimant failed to timely file her injury claim under ORS 656.265(4)(a), because the February 18, 2003 claim was not filed within a year of the December 21, 2001 injury. Unfortunately, this argument was not preserved on initial appeal to the Board. The Board, on remand, agreed and did not consider the argument. The Board observed that the issues of "timely notice of injury" and "timeliness of claim filing" are qualitatively different affirmative defenses that must be preserved at all levels of appeal. In this case, the employer preserved the timely notice issue, on appeal, but did not preserve the timeliness of claim filing issue. Because the Court had already decided the issue of timely notice in Claimant's favor, and because the timeliness of claim filing issue could not be considered, the Board determined that Claimant finally prevailed after remand from the Court of Appeals. Claimant's attorney was awarded a total of $12,875 for efforts before the Board and the Court. Reversed on Remand
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