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Oregon Court Decisions
[Table of Contents]


The following are brief summaries of 2002 Oregon Supreme Court, Oregon Court of Appeals, and U.S. Court of Appeals for the Ninth District decisions involving workers' compensation and other issues that are related in some way, such as cases involving our Constitution and administrative rules. They were compiled using descriptions provided by Willamette Law Online (Willamette University College of Law). They are e-mailed free to subscribers and also available at http://www.willamette.edu/wucl/wlo/oregon/index.htm. Summaries have been reproduced here, although formatting and clarification changes have been made. Nothing here can substitute for competent legal representation from an attorney.

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FILED: December 26, 2002—Area of Law: WORKERS' COMPENSATION - An injured worker's substantive entitlement to aggravation benefits is dependent on the relationship of the worsened condition to the original injury.

Davis v. SAIF (A114622) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A114622.htm

Claimant compensably injured her knee. In closing that claim, SAIF established aggravation rights running to April 30, 2002. In January 2000, claimant filed a new medical condition claim, which SAIF also accepted. In closing the second claim, SAIF noted claimant's aggravation rights would expire on April 30, 2002. Claimant challenged the determination, asserting that she was entitled to new aggravation rights on her second claim running from the date of its closure. HELD: Pursuant to ORS 656.273(1) (1999), an injured worker's substantive entitlement to aggravation benefits is dependent on the relationship of the worsened condition to the original injury. When the original claim has been processed as disabling, a claim for aggravation must be filed "within five years after the first notice of closure." ORS 656.273(4)(a) (1999). Read in the context of ORS 656.273(1) (1999), the "first notice of closure" is the first notice of closure after the original injury, not the first notice of closure on any subsequent claim based on the injury.

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FILED: December 11, 2002—Area of Law: WORKERS' COMPENSATION - Claimant must show that his work exposure was the major contributing cause of his overall hearing loss.

Lecangdam v. SAIF Corp. (CA A115535) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A115535.htm

Claimant seeks judicial review of an order of the Workers' Compensation Board upholding SAIF's denial of compensation for claimant's hearing loss in his left ear. Medical evidence showed that high frequency loss in claimant's left ear was work related but that low frequency hearing loss was not. Claimant argued that the two frequencies of hearing loss should be treated separately and he should be required to show only that work was the major cause of the high frequency loss. HELD: The entire hearing loss in a particular ear constitutes a disability under the workers' compensation law. Claimant was required to show that the major contributing cause of his overall hearing loss was his work exposure. The medical evidence in this case supported the Board's determination. AFFIRMED.

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FILED: November 29, 2002—Area of Law: WORKERS' COMPENSATION - Nothing in the workers' compensation statutes requires that, when an accepted condition results in a permanent disability award, an insurer cannot issue a denial of the entire combined condition.

SAIF Corp. v. Lewis (SC S47997) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S47997.htm

In February 1997, claimant, as part of his work for SAIF's insured, cleaned a building that contained insecticides, herbicides, and fungicides. Claimant filed a workers' compensation claim for exposure to pesticide-contaminated dust, which SAIF denied. After a hearing, the Board concluded that the claim was compensable, finding that medical evidence supported by objective findings established the disease.

HELD: In a unanimous opinion by Justice Durham, the Court held that claimant's occupational disease was compensable. The Court determined that the definition of "objective findings" does not require that the indications of injury or disease be present at the time of claimant's physical examination. Rather, the Court concluded that the definition of "objective findings" requires that an indication of injury or disease be capable of being verified at some time, or that physical findings or subjective responses to a physical examination be capable of being reproduced, measured, or observed. Because claimant reported symptoms that were capable of being observed and verified, the Court held that the Board did not err in finding that claimant's occupational disease was established by medical evidence supported by objective findings. Accordingly, the Court reversed the Court of Appeals' decision and affirmed the order of the Board.

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FILED: November 13, 2002—Area of Law: WORKERS' COMPENSATION - Nothing in the workers' compensation statutes requires that, when an accepted condition results in a permanent disability award, an insurer cannot issue a denial of the entire combined condition.

Kaeo v. SAIF Corp. Deits, C. J. (CA A114015) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A114015.htm

Claimant seeks review of a Workers' Compensation Board order that upheld SAIF's denial of his current condition. SAIF denied claimant's current condition after it determined that claimant's compensable injury was no longer the major contributing cause of claimant's combined condition. ORS 656.262(6)(c). HELD: The board adequately specified the nature of the combined condition and of the denial. The board's conclusion that claimant's compensable injury is no longer the major contributing cause of claimant's combined condition was supported by substantial evidence. Nothing in the workers' compensation statutes requires that, when an accepted condition results in a permanent disability award, an insurer cannot issue a denial of the entire combined condition. Finally, the administrative rule governing partial denials is inapposite here, because SAIF's denial was not a partial denial. AFFIRMED.

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FILED: November 13, 2002—Area of Law: WORKERS' COMPENSATION - Recovery is allowed when the underlying condition of an accepted symptom is discovered after acceptance if the underlying condition is the cause of the accepted symptom.

Klutsenbeker v. Jackson County (CA A112885) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112885.htm

Claimant filed requests that employer expand its acceptance of two earlier accepted claims so as to include denied conditions. Requests denied. ALJ and WCB affirmed. HELD: Recovery is allowed when the underlying condition of an accepted symptom is discovered after acceptance if the underlying condition is the cause of the accepted symptom. Here, evidence in the record supports employer's contention that the 1985 acceptance did not encompass any underlying disease. As to the 1986 claim, the board erred when it limited its inquiry to the medical evidence available at the time of acceptance. On remand, the board should determine whether, in light of all the evidence, including evidence acquired after acceptance, claimant's 1986 injury resulted from disc herniations. If it did, the herniations are within the scope of acceptance. REVERSED and REMANDED for reconsideration of denial of claim to expand employer's acceptance of claimant's 1986 claim.

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FILED: November 6, 2002—Area of Law: EMPLOYMENT LAW - In determining whether a person can perform the essential functions of the position for purposes of reasonable accommodations, the relevant position is not the general classification of the job but the specific assignments requested.

Evans v. Multnomah County Sheriff's Office (A112917) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112917.htm

A corrections officer brought an employment discrimination claim, claiming violation of Oregon's fair employment statutes by discharging him instead of reasonably accommodating his disability. Defendant was granted summary judgment on ground that plaintiff could not perform the essential functions of the position. HELD: The threshold question is whether his physical impairment significantly limits his ability to perform a broad range of jobs in various classes. In determining whether plaintiff can perform the essential functions of the position, the relevant position is not the general classification of "corrections officer" but rather the specific assignments he requested. Because plaintiff raised genuine issues of material fact on both the issue of his disability and whether he is "otherwise qualified" for the position, summary judgment was inappropriate.

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FILED: October 30, 2002—Area of Law: WORKERS' COMPENSATION - When an order on reconsideration makes a change in an award, the proper focus is not on the employer's initial award but on the propriety of the change of the order on reconsideration made in the claimant's award.

Machuca-Ramirez v. Zephyr Engineering, Inc. (CA A113765) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113765.htm

Employer closed claimant's compensable claim with an award of 28 percent permanent partial disability. Claimant sought reconsideration, and the Appellate Review Unit (ARU) reduced award to zero. ALJ then moved award to 28 percent. Workers' Compensation Board reinstated the order to zero. Claimant asserts that employer was precluded from seeking review of the ALJ's order, because the notice of closure "acts as a floor and employer cannot seek a reduction of claimant's disability award below that amount." HELD: Board correctly held that review of the ALJ's order was allowed. There is no statutory limitation on an employer's ability to challenge an order of an ALJ. Employer's notice of closure has no preclusive effect once it has been changed by the ARU. When an order on reconsideration makes a change in an award, the proper focus is not on the employer's initial award but on the propriety of the change of the order on reconsideration made in the claimant's award. AFFIRMED.

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FILED: October 16, 2002—Area of Law: TORT LAW - A plaintiff who accepts workers' compensation benefits may be equitably estopped from pursuing a civil claim.

Day v. Advanced M&D Sales, Inc. (CA A112790) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112790.htm

Plaintiff was injured while installing flooring in defendant's showroom, and later received workers' compensation benefits. Plaintiff later filed a civil claim against defendant. Defendant moved for summary judgment on the grounds of judicial and equitable estoppel. The trial court found for defendant. Plaintiff appeals, arguing equitable estoppel HELD: Equitable estoppel may be based on the acceptance of benefits. The legal effect of the plaintiff's agreement with defendant and acceptance of workers' compensation benefits was to communicate to defendant the abandonment of plaintiff's right to pursue a civil claim against defendant. Defendant relied on the representation and its insurer accepted and processed the claim. It would be unconscionable to allow plaintiff to have workers' compensation insurance and to seek civil damages against defendant for his injury. AFFIRMED.

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FILED: October 9, 2002—Area of Law: WORKERS' COMPENSATION - The processing of a claim reopened for vocational assistance is a matter concerning the claim over which the board's Hearings Division has jurisdiction.

Talley v. BCI Coca Cola Bottling (A113826) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113826.htm

Claimant's aggravation rights on his original workers' compensation claim expired in 1983. In 1991, employer reopened the claim and claimant began an authorized training program. After claimant's training program terminated, employer issued a notice of closure. The administrative law judge dismissed claimant's request for hearing, reasoning that because claimant's aggravation rights had expired, the Hearings Division did not have jurisdiction to consider claimant's objections. HELD: The processing of a claim reopened for vocational assistance is a matter concerning the claim over which the board's Hearings Division has jurisdiction. Accordingly, the board erred in dismissing claimant's request for hearing from the notice of closure for lack of jurisdiction.

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FILED: October 2, 2002—Area of Law: WORKERS' COMPENSATION - In determining whether a traveling employee's injury is compensable, the relevant inquiry is whether the activity at the time of injury was reasonably related to the worker's travel status.

Sosnoski v. SAIF Corp. (CA A112357) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112357.htm

Claimant sought judicial review of a Workers' Compensation Board order reversing an administrative law judge's order that set aside employer's denial of the compensability of claimant's neck and low back injury for the reason that the injury occurred during a distinct departure from claimant's work as a traveling employee. HELD: The relevant inquiry is whether the activity at the time of injury was reasonably related to the worker's travel status. That, in turn, depends on whether the activity at the time of injury was an activity that the employer reasonably could anticipate or expect of the traveling employee. Here, claimant's activity at the time of injury, driving a rental car to the hotel from a reasonable distance and not under the influence of intoxicants, was an activity that employer reasonably could expect of claimant. REVERSED; ADMINISTRATIVE LAW JUDGE'S ORDER REINSTATED.

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FILED: October 2, 2002—Area of Law: WORKERS' COMPENSATION - Upholding employer's denial of the compensability of claimant's combined condition preclusively determined that claimant was not substantively entitled to benefits for temporary disability after effective date of the denial.

SAIF Corp. v. Ricker (CA A111064) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A111064.htm

The Workers' Compensation Board affirmed an order of an administrative law judge awarding claimant benefits for temporary disability on a denied combined condition claim up to the time the combined condition was medically stationary. HELD: The Board erred in failing to consider whether an earlier order issued by a different administrative law judge and upholding employer's denial of the compensability of claimant's combined condition preclusively determined that claimant was not substantively entitled to benefits for temporary disability after effective date of the denial. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: September 25, 2002—Area of Law: WORKERS' COMPENSATION - A new medical condition claim was "existing" if, on the effective date of the 1997 amendment to ORS 656. 262(7)(c), it was perfected under the terms of ORS 656.262(7) and was as yet unprocessed or was pending in litigation.

Hiner v. Crawford Health & Rehabilitation (A113029) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113029.htm

Claimant contends the Workers Compensation Board erred in holding that the 1997 amendment to ORS 656. 262(7)(c) do not require a reopening of an originally non-disabling claim for the processing of new medical conditions. The Board concluded that the 1997 amendment was not applicable since the claim was not "existing" on the effective date of the Act as the compensability of the claim was not pending in litigation on that date. HELD: The Board's interpretation is too narrow and would exclude from coverage the vast number of new medical conditions that are compensable but, due to some technical snare, have not resulted in a reopening of the original claim for processing. A new medical condition claim was "existing" if, on the effective date of the Act, it was perfected under the terms of ORS 656.262(7) and was as yet unprocessed or was pending in litigation.

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FILED: September 11, 2002—Area of Law: JONES ACT -

Martinez v. Signature Seafoods Inc. (01-35768)
http://caselaw.lp.findlaw.com/data2/circs/9th/0135768p.pdf

The Plaintiff, Martinez, developed carpal tunnel syndrome while working on the defendants, Signature Seafoods Inc, fish-processing barge (the barge). The plaintiff sued for personal injuries under the Jones Act. The district court found that plaintiff was not a seaman as defined by the Jones Act because the barge was not a vessel in navigation and dismissed the case. The plaintiff appealed. HELD: Because the barge was seaworthy, was navigable in the open sea, and was not permanently moored it met the definition of vessel in navigation under the Jones Act. In doing so the Ninth Circuit specifically rejected the test established by the Fifth Circuit in Bernard v. Binnings Const. Co., 741 F.2d 824 (1984) for establishing whether a work platform qualifies as a vessel in navigation. Because the barge is a navigable vessel dismissal was inappropriate. REVERSED and REMANDED.

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FILED: August 28, 2002—Area of Law: AMERICANS WITH DISABILITIES ACT - For a monocular individual to show that his impairment is a substantial limitation on the major life activity of seeing, the impairment must prevent or severely restrict use of eyesight as compared with those who are unimpaired.

EEOC v. UPS (01-15410) U.S. Court of Appeals for the Ninth District
http://caselaw.lp.findlaw.com/data2/circs/9th/0115410p.pdf

The Equal Employment Opportunity Commission (EEOC), on behalf of monocular employees of United Parcel Service (UPS), alleged that UPS’s vision protocol discriminates against disabled persons who are otherwise qualified to drive small trucks or vans, in violation of the Americans with Disabilities Act (ADA). Other employees intervened with separate claims under the California Fair Employment and Housing Act (FEHA). The district court enjoined UPS from using its vision protocol unless modified to eliminate the requirement of central vision acuity in both eyes. The Ninth Circuit explained that for a monocular individual to show that his impairment is a substantial limitation on the major life activity of seeing, the impairment must prevent or severely restrict use of eyesight as compared with those who are unimpaired. Toyota Motor Mfg., Ky., Inc. v. Williams, 122 S.Ct. 681 (2002). HELD: The district court must apply this standard and determine if UPS perceived that the claimants were substantially limited in seeing. The Ninth Circuit instructed that if no claimant was regarded as disabled under the ADA, the district court should consider liability under the FEHA. REMANDED.

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FILED: August 28, 2002—Area of Law: WORKERS' COMPENSATION - Employer must qualify for exception to use compelled medical examination reports in determining permanent partial disability.

Sisters of Providence v. McGuire (CA A113375) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113375.htm

Employer seeks review of Workers' Compensation Board's award of temporary disability benefits and permanent partial disability (PPD) benefits to claimant. Employer argues that (1) Board improperly refused to consider compelled medical examination (CME) reports; (2) Board's conclusion was supported by insufficient evidence; and (3) Board chose the wrong date for terminating claimant's temporary disability benefits. HELD: Employer failed to show that it qualified for the exception allowing it to use CME reports in determining PPD. Medical arbiter's conclusion that claimant's impairment was consistent with the accepted condition, and the fact that no legally available medical findings with alternate cause, establishes connection between injury and impairment. Employer did not successfully demonstrate that ending date for benefits was determined by a misapplication of DCBS standards. AFFIRMED.

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FILED: August 28, 2002—Area of Law: WORKERS' COMPENSATION - ORS 656.245 defines compensable medical services, regardless of whether the claim has been accepted; non-member chiropractor can be an attending physician only for 30 days or 12 visits.

SAIF v. Jensen (CA A113528) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113528.htm

SAIF seeks review of Department of Consumer and Business Services's order that SAIF pay for medical services provided by Jens Jensen, D.C. DCBS held that limits set out in ORS 656.245(2)(b)(A) applied only to accepted claims. SAIF argues that Jensen qualified as an "attending physician" for only 30 days after date of first treatment. After that time, services were not compensable. HELD: ORS 656.245 describes compensable medical services, without regard to whether claim has been accepted at the time of service. The meanings of ORS 656.245(2)(b)(A) and 656.005(12)(b) are plain. Chiropractor who is not a member can be an attending physician only for 30 days from date of first treatment or 12 visits, whichever first occurs. Jensen did not qualify. His services were not compensable. DCBS also erred in holding that SAIF was equitably estopped from denying payment to Jensen. The letters sent from SAIF to Jensen did not authorize any future medical services. REVERSED.

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FILED: August 28, 2002—Area of Law: WORKERS' COMPENSATION - An injury arising out of and in the course of employment is compensable.

Getz v. Wonder Bur (CA A114152) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A114152.htm

Claimant challenges the Workers' Compensation Board's denial of a claim for an injury sustained during a "physical capacity evaluation" that claimant was ordered to undergo by his treating physician to close a claim for a previously incurred compensable injury. The Board determined that the relationship between claimant's injury and employment was insufficient to justify compensation. HELD: In this case, the second injury is an injury arising out of and in the course of employment and, therefore, compensable. REVERSED.

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FILED: August 14, 2002—Area of Law: WORKERS' COMPENSATION - ORS 656.265(2) requires a claimant to notify his employer of the when, where and how an injury occurred.

Vsetecka v. Safeway Stores, Inc. (CA A113353) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113353.htm

Claimant seeks review of an order of Workers' Compensation Board denying his claim because he failed to notify his employer of his on-the-job injury within the time required by the statute. ORS 656.265(2) requires claimant to notify employer in writing "when and where and how" an injury has occurred. Claimant only recorded in a log book, "Right Wrist Pain," and his name and date. HELD: Where the statute requires notice of "when and where and how" an injury occurred, claimant must provide information sufficient to satisfy all three requirements. The Board properly concluded that the log book entry indicates when and where, but not how, the injury was incurred. AFFIRMED.

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FILED: August 14, 2002—Area of Law: CONSTITUTIONAL LAW - Any person may seek judicial review of an administrative rule; however, a claim is not justiciable if the court's decision would have no practical effect on petitioner's rights.

Lovelace v. Bd. of Parole and Post-Prison Supervision. (CA A109609) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A109609.htm

Petitioner seeks judicial review of two administrative rules pursuant to ORS 183.400(1). The Board moved to dismiss, arguing that petitioner does not have standing to seek judicial review of those rules. HELD: Although ORS 183.400(1) provides that "any person" may seek judicial review of an administrative rule, a claim is not justiciable if a decision of this court would have no practical effect on petitioner's rights. Petitioner has demonstrated that this court's decision would have a practical effect on his right to subsequently file a petition for a writ of habeas corpus. Motion to dismiss denied as moot; amended motion to dismiss denied.

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FILED: August 8, 2002—Area of Law: CONSTITUTIONAL LAW - The limitation of causes of action for a tort committed by an agent of a public body against the public body alone, on its face, does not violate the Oregon Constitution.

DeMendoza v. Huffman (SC S48430) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S48430.htm

The Court answered three certified questions from the District Court for the District of Oregon regarding the constitutionality of ORS 30.265(1). The individually named defendants moved to strike and dismiss the claims against them, and to substitute the state as the sole defendant in accordance with ORS 30.265(1). While that motion was pending, plaintiff moved the District Court to certify questions to the Court. The Court accepted certification of the following questions: Does the limitation of causes of action for a tort committed by an agent of a public body to a cause of action against only the public body violate Article I, section 10, section 17, or section 20 of the Oregon Constitution? HOLDING: The limitation of causes of action for a tort committed by an agent of a public body against the public body alone, on its face, does not violate Article I, section 10, 17, or 20, of the Oregon Constitution.

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FILED: August 7, 2002—Area of Law: WORKERS' COMPENSATION - OAR 436-035-0010 does not allow for consideration of the factors used by the treating physician in evaluating a chronic impairment.

Gonzalez v. SAIF Corp. (CA A114224) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A114224.htm

Claimant seeks judicial review of an order of the Workers' Compensation Board, asserting that the Board erred in holding that he failed to prove "chronic impairment" under OAR 436-035-0010(5). Claimant argues that the phrase "significantly limited" in the rule should be interpreted to allow consideration of whether the limitation is significant to the particular worker in light of his or her personal, individualized need to repetitively use the injured body part. HELD: OAR 436-035-0010(2) specifically limits the criteria that can be considered in rating scheduled losses to, among other things, the loss itself, and when read with OAR 436-035-0010(5), does not allow for consideration of the factors used by the treating physician. The Board did not err in its interpretation of OAR 436-035-0010(5). AFFIRMED.

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FILED: July 31, 2002—Area of Law: WORKERS' COMPENSATION - Board must explain its reasoning if it appears contrary to the evidence presented.

Kenimer v. SAIF Corp. (CA A113239) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113239.htm

Claimant seeks review of Workers' Compensation Board order upholding SAIF's denial of his right knee condition. Claimant argues that the Board found that Dr. James's opinion was that the major contributing cause of claimant's need for treatment was the preexisting condition and that that finding was not supported by substantial evidence. Claimant also argues that the Board held that Dr. Hayes's opinion was legally insufficient because it failed to weigh the relative contributions of all potential causes and that that finding was not supported by substantial evidence. HELD: The Board must sufficiently explain its reasoning. Dr. James's opinion appears to support a conclusion contrary to the Board's. The court will not read between the lines to discern the Board's rationale. The Board's finding was not supported by substantial evidence. REVERSED AND REMANDED.

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FILED: July 30, 2002—Area of Law: WORKERS' COMPENSATION

Stevedoring Services of America v. OWCP (01-70354) U.S. Court of Appeals for the Ninth District
http://caselaw.lp.findlaw.com/data2/circs/9th/0170354p.pdf

James Benjamin had lost 34 percent of his hearing while employed at Stevedoring Services of America as well as Eagle Pacific Insurance Co. An Administrative Law Judge (ALJ) found that both of these past employers had exposed Mr. Benjamin to injurious noise levels. Subsequently, the ALJ merged the claims against the two employers and found that Stevedoring Services of America, being the latter employer, was liable under the "last employer doctrine." Stevedoring Services of America petitioned for review of this decision, which awarded Mr. Benjamin disability benefits under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. sec. 901. HELD: The "last employer doctrine" does not mean that there can be just one "last employer," and thus, only one employer liable while an equally liable employer escapes liability. REVERSED AND REMANDED.

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FILED: July 25, 2002—Area of Law: WORKERS' COMPENSATION - The Workers' Compensation Board may uphold an ALJ's decision to grant a continuance unless it constitutes an abuse of discretion.

SAIF Corp. v. Kurcin (SC S46750) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S46750.htm

Claimant filed a workers' compensation claim, insurer denied the claim, and claimant requested a hearing. At the hearing, claimant asked the ALJ to leave the hearing record open, so that claimant's expert could comment on and rebut the hearing testimony of insurer's expert. Insurer objected, arguing that a continuance was not necessary, because insurer had provided claimant with its expert's reports before the hearing, and that claimant had not exercised due diligence in requesting a continuance. The ALJ granted the continuance. The Board ruled that the ALJ had not abused his discretion by the granting the continuance. The Court of Appeals reversed the Board's order. In a unanimous opinion by Justice Durham, the Supreme Court held that the Board had not applied its own rules incorrectly or interpreted any provision of law erroneously. The record supported the Board's conclusion that the ALJ did not abuse his discretion by granting the continuance. Consequently, the Court reversed the Court of Appeals and affirmed the Board's order. HOLDING: The Workers' Compensation Board may uphold an ALJ's decision to grant a continuance unless it constitutes an abuse of discretion.

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FILED: July 19, 2002—Area of Law: SOVEREIGN IMMUNITY

State of Arizona v. Bliemeister (01-16058) U.S. Court of Appeals for the Ninth District
http://caselaw.lp.findlaw.com/data2/circs/9th/0116058p.pdf

Bliemeister owned a mechanic's shop where one of her workers was injured on the job. Her business did not have worker's compensation insurance; therefore, the employee applied to the State for medical benefits and received the benefits. The State later sought reimbursement for money paid to the employee. Bliemeister petitioned for Chapter 7 bankruptcy, listing the State as a creditor. Bliemeister filed a complaint to discharge the debt owed to the State. The State responded with an answer that never raised the affirmative defense of sovereign immunity. HELD: The State waived any sovereign immunity that might have been available when the State consented to suit in a federal bankruptcy court proceeding without raising it as an affirmative defense. When the State attended the bankruptcy court's oral hearing and argued the merits of its case, and learned that the court was leaning towards discharging the debt it asserted its sovereign immunity, that was a tactical decision to waive its immunity, therefore, debtor's obligation to the state was properly discharged. AFFIRMED

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FILED: July 17, 2002—Area of Law: WORKERS' COMPENSATION - ORS 656.262(2)(d) requires revision or a response that acts to clarify the initial notice of acceptance.

Rasmussen v. SAIF. (CA A112064) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112064.htm

On judicial review from order of the Workers' Compensation Board, claimant argues that board erred in concluding he was not entitled to attorney fees under ORS 656.386(1)(a) (1999). Claimant asserted entitlement to attorney fees on ground that insurer failed to respond adequately to his "omitted condition" letter within the time period specified by ORS 656.262(6)(d) (1999). ORS 656.262(6)(d) (1999) requires an insurer to revise its notice of acceptance or "to make other written clarification in response" within 30 days to a claimant's "omitted condition" letter. SAIF's responded that it was investigating the relationship of the "omitted conditions" to the accepted condition. HELD: SAIF's response was not a "clarification" for purposes of ORS 656.262(6)(d) (1999) because it did nothing to clarify anything about its initial notice of acceptance. REVERSED AND REMANDED.

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FILED: July 17, 2002—Area of Law: WORKERS' COMPENSATION - Whether the Board made an inference is not at issue if substantial evidence supports a Board finding.

Hanson v. Dan's Steel Co. (CA A111945) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A111945.htm

Claimant seeks review of a Workers' Compensation Board order reducing claimant's award of permanent partial disability. The issue is whether the Board's finding that the medical arbiters' measurements were not due to the accepted conditions is supported by substantial evidence. Claimant argues that, because the medical arbiters failed to identify any other cause for the impairment findings, the court's holding in SAIF v. Danboise, 147 Or App 550, rev den 325 Or 438 (1997), requires the Board to rate the disability on those findings. HELD: Substantial evidence supports the Board's finding. Danboise does not require an inference of causation. Rather, Danboise discusses when an inference of causation is permissible. Whether or not the Board makes an inference of causation, the overriding question for this court is whether substantial evidence supports the Board's decision. AFFIRMED.

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FILED: July 17, 2002—Area of Law: WORKERS' COMPENSATION - OAR 436-035-0100 does not require an express medical statement that a claimant is significantly limited.

Buss v. SAIF. (CA A116019) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A116019.htm

Claimant seeks judicial review of an order of the Workers' Compensation Board. Claimant contends that the Board's order was erroneously founded on the premise that claimant's proof of chronic impairment for purposes of entitlement to PPD under OAR 436-035-0010(5) was legally insufficient because it did not include an express medical statement that claimant is significantly limited in the repetitive use of her wrists due to a chronic and permanent medical condition. HELD: Because the court is unable to determine whether the Board's consideration of claimant's alleged entitlement to additional PPD was based on an erroneous legal premise, it reverses and remands to the Board for clarification on reconsideration. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: July 11, 2002—Area of Law: EMPLOYMENT LAW - The exclusivity provision of the Workers' Compensation law does not bar a civil wrongful death action against an employer when the death resulted from a personal risk, not a "workplace event."

Panpat v. Owens-Brockway Glass Container, Inc. (SC S48419) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S48419.htm

Two employees of Owens-Brockway Glass Container were involved in a romantic relationship that ended. A few months later, one of the employees, Blake, entered employer's plant and shot and killed the other employee while she was at work. Plaintiff filed this wrongful death action as the personal representative of the estate. HOLDING: The exclusivity provision of the Workers' Compensation law does not bar a civil wrongful death action against an employer when the death resulted from a personal risk, not a "workplace event."

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FILED: July 10, 2002—Area of Law: WORKERS' COMPENSATION - When a decision is based on information not held by the employer it is invalid because a combined condition cannot be denied until it has been accepted.

Longview Inspection v. Snyder (A115166) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A115166.htm

Employer sought review of an ALJ and Workers' Compensation Board finding that the claimant's work-related injury was the contributing cause of his current condition. HELD: Because the ALJ's decision was based on medical information that the employer did not have when he denied compensation, the board erred in overturning the denial. A combined condition cannot be denied until it has been accepted. As claimant has not finally prevailed, the Court of Appeals also reverses the award of attorney fees. REVERSED AND REMANDED.

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FILED: July 10, 2002—Area of Law: WORKERS' COMPENSATION - ORS 656.382(2) does not provide for insurer-paid attorney fees for services provided at the hearing level, unless there has been some affirmative determination of entitlement.

Reynolds v. Hydro Tech Inc. (A111078) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A111078.htm

Claimant successfully defended against SAIF's assertion that benefits for temporary disability should be reduced and an offset authorized. The Court held that ORS 656.382(2) authorizes the assessment of an insurer-paid attorney fee if the insurer initiates a review and the reviewing body determines that "compensation awarded" should not be disallowed or reduced. Multiple different statutory provisions illustrate that the term "award" is not synonymous with the term "paid." HELD: Because claimant's temporary compensation had not been awarded by notice of closure, administrative or judicial determination, or other affirmative determination of entitlement, ORS 656.382(2) does not provide for insurer-paid attorney fees for services provided at the hearing level. AFFIRMED.

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FILED: June 28, 2002—Area of Law: WORKERS' COMPENSATION - Compensation was properly denied to claimant because a work related injury was not the major contributing cause for the needed treatment.

Schuler v. Beaverton School Dist. (SC S47320) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S47320.htm

In a unanimous opinion authored by Justice Riggs, the Court held that the Workers' Compensation Board did not err in holding that the claimant had failed to prove that her claim was compensable. Claimant, who had a preexisting degenerate disc disease, required surgery after restraining a student. She was denied benefits when it was concluded that work was not the major cause of her injury. HOLDING: Claimant was properly denied compensation because a work related injury was not the major contributing cause for the needed treatment.

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FILED: June 19, 2002—Area of Law: WORKERS' COMPENSATION - A child adopted by one adult in a relationship but not the other will not qualify for survivor benefits under ORS 656.266.

Allen v. Paula Ins. (CA A112904) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112904.htm

Claimant lived with decedent and a child that she had adopted but that decedent had not. Claimant and decedent were unmarried. Decedent died in a work related accident, and claimant applied for survivor's benefits under ORS 656.226, which provides for benefits if the worker and the claimant lived together for more than one year and "children are living as a result of that relation." The employer denied survivor's benefits. The Workers' Compensation Board upheld the denial. On appeal, claimant argues that the child she adopted qualifies under the statute. HELD: In interpreting ORS 656.226, effect is given to every word to ascertain what the legislature intended. This statute clearly limits "children" that qualify for survivor's benefits to those "living as a result of that relation" between two unmarried adults. A child adopted by one adult in the relationship but not the other does not qualify under the statute. AFFIRMED.

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FILED: June 19, 2002—Area of Law: WORKERS' COMPENSATION -Conditions and limitations that predate the date of closure of a claim entitle the claimant to continuing benefits.

Skyline/Homette Corp. v. Boling (CA A115406) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A115406.htm

Employer argues that the Workers' Compensation Board erred in relying on post-closure reports from claimant's treating physician in determining that claimant was not medically stationary. Employer also argues that the Board erred in setting aside employer's closure notices based on findings that claimant has continuing injury-related limitations and on his physician's prescription of custom orthotics as a "palliative" measure. HELD: Substantial evidence supports the Board's determination that claimant's conditions and limitations were ongoing and predated the initial date of closure. AFFIRMED.

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FILED: June 7, 2002—Area of Law: TORTS - ORS 30.265(3)(a), which immunizes every public body from liability for any claim for injury or death of any person that is covered by workers' compensation law, does not violate the Oregon Constitution.

Storm v. McClung (S47680) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S47680.htm

In a unanimous opinion authored by Justice De Muniz, the Supreme Court affirmed the Court of Appeals, and held that the immunity provisions of ORS 30.265(3)(a), which immunize every public body from liability for any claim for injury or death of any person that is covered by workers' compensation law, do not violate Article I, section 10, of the Oregon Constitution. Plaintiff, the widow of Jon Storm, brought a wrongful death action under ORS 30.020 against Oregon City (city) for the benefit of Storm's mother and daughters. The Court of Appeals held that the trial court erred in submitting Storm's daughters' claims to the jury, and, reversed. The Supreme Court affirmed and held that, because ORS 30.265(3)(a) would have barred Storm from a negligence-based action had he survived, plaintiff's wrongful death action is barred by the same immunity provisions. Because the city never argued that a claim for the mother was barred, the Court left in place the Court of Appeals' disposition of the wrongful death claim. HOLDING: ORS 30.265(3)(a), which immunizes every public body from liability for any claim for injury or death of any person that is covered by workers' compensation law, does not violate the Oregon Constitution.

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FILED: May 8, 2002—Area of Law: WORKERS' COMPENSATION - An insurer cannot close and rate a claim until both the original accepted condition and any direct medical sequelae are medically stationary.

Manley v. SAIF (CA A110793) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110793.htm

HELD: Under ORS 656.268(14), direct medical sequelae must be rated as part of the original accepted condition unless specifically denied. On remand, the board must determine whether claimant's trigger finger condition is a direct medical sequela of the accepted laceration condition and, if so, whether it was medically stationary at the time of claim closure. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: May 9, 2002—Area of Law: TORTS - Salesman was an independent contractor rather than defendant's employee and, therefore, defendant could not be vicariously liable for the salesman's allegedly negligent conduct.

Schaff v. Ray's Land & Sea Food Co., Inc. (S48360) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S48360.htm

In a decision authored by Justice Durham, the Oregon Supreme Court affirmed a Court of Appeals decision that a salesman who sold products for Ray's Land & Sea Food Co. (defendant) was an independent contractor rather than defendant's employee and, therefore, that defendant could not be vicariously liable for the salesman's allegedly negligent conduct. Plaintiff, estate of Schaff, claimed that Schaff acted in the scope of his employment as salesman. The trial court granted summary judgment for defendant. The Supreme Court held that the undisputed facts were that the defendant had not exercised control over the manner in which the salesman had performed services. Justice DeMuniz in dissent, joined by Justice Durham and Justice Riggs, argued that the record supported more than one reasonable inference regarding salesman's status and should have been presented to a jury. HOLDING: Salesman was an independent contractor rather than defendant's employee; therefore, defendant could not be vicariously liable for the salesman's allegedly negligent conduct.

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FILED: May 8, 2002—Area of Law: WORKERS' COMPENSATION - Claimant not entitled to oral hearing and cross examination of medical opinions for reconsideration purposes.

Logsdon v. SAIF Corp. (CA A109321) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A109321.htm

HELD: Claimant was not entitled to an oral hearing for the purpose of cross-examining physicians who provided medical opinions on reconsideration concerning his medically stationary date. Considering and applying the three-part analysis of Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976), the court reasoned that the medically stationary date, which affects claimant's continued receipt of temporary disability benefits, is a significant private interest, but that the interest is not as significant as permanent total disability, as involved in Koskela, which has an irrevocable impact on a worker's self-sufficiency. The court further reasoned that the precise issue of the medically stationary date does not, in the generality of cases, involve a question of witness credibility or veracity. Finally, the court held that a weighing of the limited nature of claimant's interest against the possible costs of providing a hearing required the conclusion that the procedural safeguards that claimant seeks are not constitutionally required. AFFIRMED.

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FILED: May 8, 2002—Area of Law: WORKERS' COMPENSATION - The triggering date for the last injurious exposure rule is the date the person first sought medical treatment.

Sunrise Electric, Inc. v. Ramirez (CA A112564) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112564.htm

The Workers' Compensation Board applied the last injurious exposure rule to assign Farmers Insurance Company responsibility for claimant's trigger finger condition. Farmers seeks review of the board's order. HELD: Under Agricomp Ins. v. Tapp, 169 Or App 208, 7 P3d 764, rev den 331 Or 244 (2000), the court held that, for the purpose of assigning responsibility under the last injurious exposure rule, the triggering date is the date a claimant first seeks or receives medical treatment, whichever occurs first. Under Tapp, the only question in determining the triggering date is one of fact--when did the claimant first seek or receive treatment for the compensable condition. Because it is unclear whether the board correctly followed the holding in Tapp, we reverse and remand the Board's order to permit it to clarify the basis for its decision. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: May 8, 2002—Area of Law: WORKERS' COMPENSATION - No right to testify at workers compensation hearing as to base functional capacity.

Trujillo v. Pacific Safety Supply (CA A99410) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A99410.htm

On remand from the Oregon Supreme Court, the court considers whether claimant has a constitutional right to testify at an oral hearing concerning his base functional capacity. HELD: Claimant had no right to testify at his hearing concerning his base functional capacity, but because the Workers' Compensation Board's order included inconsistent findings concerning the rating of claimant's base functional capacity, the case is reversed and remanded for reconsideration. Considering and applying the three-part analysis of Mathews v. Eldridge, 424 US 319, 335, 96 S Ct 893, 47 L Ed 2d 18 (1976), the court reasoned that the base functional capacity, which affects claimant's extent of disability, is a significant private interest, but that the interest is not as significant as permanent total disability. Finally, the court held that a weighing of the limited nature of claimant's interest against the possible costs of providing a hearing required the conclusion that the procedural safeguards that claimant seeks are not constitutionally required. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: May 8, 2002—Area of Law: WORKERS' COMPENSATION - Worsening of a condition must be proved to transfer the burden to a subsequent employer.

Weyerhaeuser v. Hagebush (CA A115405) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A115405.htm

Petitioner seeks judicial review of a Workers' Compensation Board order concluding that it, rather than claimant's later employer, is responsible for claimant's right carpal tunnel syndrome. HELD: (1) There was substantial evidence in the record that claimant was treated for right-side carpal tunnel syndrome while employed by petitioner; (2) the board erred in failing to address petitioner's argument that the ALJ erroneously concluded that there was no evidence of a worsening of claimant's injury while working for the later employer. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: May 1, 2002—Area of Law: WORKERS' COMPENSATION - The last injurious exposure rule is not intended to transfer liability from an employer whose employment caused a disability to a later employer whose employment did not.

Christman v. SAIF (A109424) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A109424.htm

Claimant seeks review of an order of the Workers' Compensation Board that failed to assign responsibility for claimant's carpal tunnel syndrome to either of two employers because the Board decided that an earlier employer, not joined in the proceeding, was responsible. Claimant argues that the Board erred in using the last injurious exposure rule against claimant when it found an employer not joined in the proceeding responsible. HELD: The Board's review is de novo and it has broad discretion to consider arguments raised for the first time on appeal. The last injurious exposure rule is not intended to transfer liability from an employer whose employment caused a disability to a later employer whose employment did not. The Board's order failed to explain its reasons for relying on medical opinions that were based on a potentially inaccurate assumption. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: May 1, 2002—Area of Law: WORKERS' COMPENSATION - SAIF cannot reap the benefits of accepting a combined condition without having to follow the statutory requirements that accompany combined conditions.

SAIF v. Custer (A110775) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110775.htm

SAIF seeks review of an order of the Workers' Compensation Board that awarded scheduled permanent partial disability. SAIF argues that substantial evidence did not support the Board's finding that SAIF had accepted claimant's conditions without reservation. SAIF concedes it did not accept a combined condition but argues that it otherwise limited its acceptance. HELD: Substantial evidence supports the Board's finding that SAIF accepted claimant's conditions without reservation. The Workers' Compensation Act is a complete statement of the parties' rights and obligations, and they are sui generis. SAIF wanted the benefit of accepting a combined condition without having to follow the statutory requirements that accompany combined conditions. There is no authority to support SAIF's position. AFFIRMED.

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FILED: May 1, 2002—Area of Law: WORKERS' COMPENSATION - Employers with an accepted claim are liable for consequential conditions if the accepted injury is the major contributing cause.

SAIF v. Webb (A110994) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110994.htm

SAIF seeks judicial review of a Workers' Compensation Board order setting aside its denial of responsibility for claimant's right knee degenerative joint disease. SAIF argues that the board erred when it assigned responsibility to SAIF under an "exception" to the presumption established in Industrial Indemnity Co. v. Kearns, 70 Or App 583, 690 P2d 1068 (1984). HELD: When the evidence establishes that the major contributing cause of a consequential condition is a previously accepted injury, resorting to the judicially created Kearns presumption is unnecessary. Employers with an accepted claim are liable for a consequential condition if the accepted injury is the major contributing cause. ORS 656.005(7)(a)(A). AFFIRMED.

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FILED: May 1, 2002—Area of Law: WORKERS' COMPENSATION - Employer's denial of claimant's "current condition and need for treatment" was broad enough to encompass conditions for which claimant had made no express claim.

Sound Elevator v. Zwingraf (A111284) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A111284.htm

Employer sought review of a Workers' Compensation Board order setting aside a denial of a claim for a medial meniscus tear of the knee, and asserting that claimant had no right to request a hearing with regard to that condition because no specific claim had been made. HELD: Employer's denial of claimant's "current condition and need for treatment" was broad enough to encompass the medial meniscus condition his physician had noted on forms sent to employer, even though claimant had made no express claim for a new medical condition or for acceptance of an omitted condition. Claimant therefore had a right to request a hearing on the denial of that condition. AFFIRMED.

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FILED: May 1, 2002—Area of Law: WORKERS' COMPENSATION - Military service is "employment" for purposes of the workers' compensation statutes.

Wallowa County v. Fordice (A113714) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A113714.htm

The Workers' Compensation Board found that claimant's military service was an employment relationship as defined under Oregon workers' compensation law and that, therefore, employer was liable for his disability under the last injurious exposure rule. Employer appealed asserting that military service did not meet the criteria for employment. HELD: Military service is "employment" for purposes of the workers' compensation statutes. AFFIRMED.

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FILED: April 11, 2002—Area of Law: WORKERS' COMPENSATION - Employer can deny claim when the injury is not the major contributing cause for continued treatment.

Multifoods Specialty Distribution v. McAtee (S48360) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S47519.htm

In a unanimous opinion authored by Justice De Muniz, the Supreme Court held that an employer can deny a claimant's claim when the injury is no longer the major contributing cause for the claimant's need for continuing treatment. Employer, who accepted a prior degenerative condition only as part of a combined condition, is allowed under ORS 656.262(6)(c) to deny the claimant's claim when the lumbar strain was no longer the major contributing cause of claimant's need for treatment.

The claimant suffered a disc herniation in a prior job. He fell and suffered an acute lumbar strain while working for Multifoods. Later, a physician determined that the lumbar strain was no longer the source of claimant's discomfort but resulted from his prior injury. Employer issued a denial of benefits because claimant's pre-existing condition was the major contributing cause for medical treatment, not the acute lumbar strain. HOLDING: Employer can deny claim when the injury is not the major contributing cause for continued treatment. AFFIRMED.

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FILED: April 11, 2002—Area of Law: WORKERS' COMPENSATION - A truck driver, who owns his own truck and is injured on his employer's farm, is a "worker" within the meaning of ORS 656.005(30).

Rubalcaba v. Nagaki Farms, Inc. (SC S48217) Oregon Supreme Court
http://www.publications.ojd.state.or.us/S48217.htm

In a unanimous opinion, authored by Justice Leeson, the Supreme Court held that a harvest truck driver, who injured his arm while working at his employer's farm, was a "worker" within the meaning of ORS 656.005(30). The employee, who owned his own truck, injured his arm while servicing his truck.

The Court rejected employer's argument that a subsequent case, S-W Floor Cover Shop v. Nat'l Council on Comp. Ins., 318 Or 614 (1994), had changed the analysis for determining "worker" status. The Court clarified that, in situations in which there is some evidence suggesting that an employer retained the right to control the method and details of a claimant's work, a conclusion about the claimant's status depends on the analytical factors relevant to both the "right to control" and the "nature of the work" tests. The Court reversed the decision of the Court of Appeals and remanded the case to the Workers' Compensation Board for further proceedings. HOLDING: A truck driver, who owns his own truck and is injured on his employer's farm, is a "worker" within the meaning of ORS 656.005(30). REVERSED AND REMANDED TO THE WORKERS' COMPENSATION BOARD FOR FURTHER PROCEEDINGS.

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FILED: April 10, 2002—Area of Law: WORKERS' COMPENSATION - When court agrees with the arbiters opinion there should not be an award of attorneys fees.

Express Services, Inc. v. Conradson (CA A110740) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110740.htm

HELD: Based on the medical arbiter's opinion, there was substantial evidence that a reasonable expectation of permanent injury developed within one year of the date of injury. However, the board erred in awarding attorney fees under ORS 656.382(2). ORS 656.382(2) awards attorney fees to claimant if an employer requests a hearing and the ALJ, board, or court finds that compensation awarded to a claimant should not be disallowed or reduced. No compensation was awarded by the disabling classification and therefore an award of compensation was not upheld. The award of attorney fees under ORS 656.382(2) was error. REVERSED AS TO AWARD OF ATTORNEY FEES; OTHERWISE AFFIRMED.

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FILED: March 27, 2002—Area of Law: WORKERS' COMPENSATION - Employee who was injured in a crosswalk on his way to work did not fall within the greater hazard exception to the coming or going rule.

Beaver v. The Mill Resort and Casino (CA A110473) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110473.htm

Claimant seeks review of a Workers' Compensation Board (board) order denying his claim for injuries that he suffered when he was struck in a public crosswalk on his way to work. The board determined that claimant's injury fell within the "going and coming rule" and, thus, did not occur in the course of employment. Claimant argues that the "greater hazard" exception to the "going and coming rule" applies to his injury, and that the board erred in concluding otherwise. HELD: The Board's determination that claimant's injury did not fall within the "greater hazard" exception was supported by both substantial reasoning and substantial evidence. AFFIRMED.

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FILED: March 27, 2002—Area of Law: WORKERS' COMPENSATION - Volunteer fireman's injury while on stand-by duty did not arise out of employment.

Halsey Shedd RFPD v. Leopard (CA A108543) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A108543.htm

Employer seeks review of a Workers' Compensation Board (board) order awarding compensation to claimant for an injury that he sustained when he slipped and fell in his driveway while on stand-by duty as a volunteer fireman. Employer argues that the board erred in its conclusion that claimant's injury arose out of and occurred in the course of employment. HELD: The risk of claimant's injury was not a risk connected with the nature of claimant's work as a volunteer fireman, nor was it a risk to which his work environment exposed him, and, thus, his injury did not "arise out of" employment. The board erred in concluding otherwise. REVERSED AND REMANDED.

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FILED: March 20, 2002—Area of Law: WORKERS' COMPENSATION - Under ORS 656.262(11)(a), once a dispute is properly before the Hearings Division, any subsequent narrowing of the issues not divest jurisdiction.

Icenhower v. SAIF Corp. (CA A110770) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110770.htm

In this workers' compensation case, claimant seeks judicial review of an order of the Workers' Compensation Board dismissing her request for a hearing for lack of jurisdiction. Claimant argues that the Board erred in concluding that the Hearings Division lost jurisdiction when, before the close of the hearing, the imposition of penalties under ORS 656.262(11)(a) became the only remaining issue. HELD: Under ORS 656.262(11)(a), once a dispute is properly before the Hearings Division, any subsequent narrowing of the issues to just the penalty issue does not divest the Hearings Division of jurisdiction over the dispute. REVERSED AND REMANDED FOR RECONSIDERATION.

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FILED: February 27, 2002—Area of Law: WORKERS' COMPENSATION - The 1994 version of Oregon law controls the timeliness of a request for reclassification of a claim made after the statute's effective date.

Norstadt v. Liberty Northwest Ins. Corp. (CA A111706) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A111706.htm

Claimant sought to have his injury claim reclassified from nondisabling to disabling. The Workers' Compensation Board held that the request was untimely under the pre-1999 version of ORS 656.277(1). HELD: The 1994 version of ORS 656.277(1) controls the timeliness of a request for reclassification of a claim made after the statute's effective date. It does not matter that claimant's right to seek reclassification may have expired under the previous version of the statute. REVERSED AND REMANDED.

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FILED: February 27, 2002—Area of Law: WORKERS' COMPENSATION - ORS 656.266 prohibits a claimant from proving that work caused his or her condition solely by disproving other potential causes.

Seeley v. Sisters of Providence (CA A110771) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A110771.htm

HELD: ORS 656.266 prohibits a claimant from proving that his or her work caused the condition solely by disproving other potential causes. Here, claimant offered a doctor's opinion based in part on statistical evidence linking her condition to the workplace. That evidence does not run afoul of ORS 656.266. Although the doctor also excluded other likely sources of the disease in concluding that it was more likely than not that claimant contracted hepatitis C at work, that fact does not render the doctor's opinion insufficient. Because the Board ruled that claimant had not met her burden of production, it did not consider whether she had met her burden of persuasion. REVERSED AND REMANDED.

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FILED: February 20, 2002—Area of Law: WORKERS' COMPENSATION - Board considered all relevant factors and properly relied on physician's opinion.

Ortman v. Laidlaw Transit (CA A108891) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A108891.htm

HELD: (1) There was evidence before the Board that other, work-related factors may have been a cause of claimant's injury and the Board discussed those factors. There is no indication that the Board failed to consider all the relevant factors based on the physician's opinion that alcohol was the major contributing cause of claimant's injury. (2) Despite an inaccuracy in the physician's opinion, the Board could reasonably rely on the physician's opinion in support of its determination that claimant's alcohol consumption was the major contributing cause of her fall. AFFIRMED.

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FILED: January 30, 2002—Area of Law: WORKERS' COMPENSATION - If WCB erred, the error was harmless because the WCB reversed the penalty and attorney fees.

BCI Coca Cola Bottling Co. v. Adamson (CA A112732) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112732.htm

Employer seeks review of an order of the Workers' Compensation Board holding that, although employer failed to pay claimant benefits for permanent partial disability within the time prescribed by the Department of Consumer and Business Services' administrative rule, employer is not required to pay a penalty or attorney fees because it had a legitimate doubt as to its liability and did not unreasonably resist payment of compensation. Employer asserts that the Board erred in its determination that the payment of benefits was untimely. HELD: Assuming, without deciding, that the Board erred in holding that employer's payment of benefits for PPD was untimely, any error was harmless in light of the Board's ultimate determination reversing the ALJ's assessment of a penalty and attorney fees. AFFIRMED.

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FILED: January 30, 2002—Area of Law: WORKERS' COMPENSATION - Employer may contest compensability if a condition was not previously accepted.

Gilbert v. Cavenham Forest Industries Division (CA A112661) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A112661.htm

The Workers' Compensation Board (Board) rejected claimant's attempt to expand the scope of a previously accepted claim. Claimant appeals, arguing that his employer's prior acceptance impliedly included his arachnoiditis condition and that employer may not now deny compensability of that condition. HELD: Employer is not precluded from contesting compensability. The prior acceptance did not include arachnoiditis, nor was compensability actually litigated in any prior proceeding. On the merits, substantial evidence supports the Board's finding that the condition is not related to claimant's compensable injury. AFFIRMED.

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FILED: January 23, 2002—Area of Law: WORKERS' COMPENSATION - Undocumented worker who suffered a compensable injury is entitled to benefits based on the difference between the pre-injury wage and the wage of the modified job.

Alanis v. Barrett Business Services (CA A105513) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A105513.htm

HELD: The Board correctly held that claimant, an undocumented worker who was discharged from his employment after a compensable work injury, is entitled to benefits for temporary partial disability based on the difference, if any, between the pre-injury wage and the wage of the physician-approved modified job, whether or not the job is offered and available and irrespective of the worker's inability to work due to the undocumented status. The Board erred, however, in its calculation of claimant's average weekly wage. Because claimant was temporary and was working for a temporary service provider, claimant's various job assignments are not to be considered new wage agreements in determining his average weekly wage at the time of injury. AFFIRMED ON PETITION; REVERSED AND REMANDED FOR RECONSIDERATION ON CROSS-PETITION.

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FILED: January 23, 2002—Area of Law: WORKERS' COMPENSATION - Party must exhaust his or her administrative remedies before seeking further review.

Everett v. SAIF (CA A111969) Oregon Court of Appeals
http://www.publications.ojd.state.or.us/A111969.htm

HELD: The workers' compensation scheme reflects the well-established principle that a party must exhaust his or her administrative remedies before seeking further review. Exhaustion requires that the party properly raise the issue before the agency and, if he or she fails to do so, he or she loses his or her right of further review on that issue. Claimant failed to exhaust his administrative remedies by not presenting any evidence to DCBS to allow that agency to determine if claimant's position was correct. Because claimant effectively bypassed the proceeding before DCBS, the Board correctly determined that he could not introduce that evidence, for the first time, at the hearing before the ALJ. AFFIRMED.

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