Caselaw Update

The Oregon Court of Appeals doubles down on the two-prong Roseburg Forest test making it easier for a presumptively responsible employer to shift responsibility

In April 2020, the Court of Appeals issued a significant decision regarding responsibility cases. In NAES Corporation v. SCI 3.2, Inc., 303 Or. App. 684 (2020), the issue was whether the Board erroneously focused on “probability” and not “possibility” of contribution in determining that claimant’s prior work exposure was the sole cause of his hearing loss such that the presumptively responsible employer could successfully shift its responsibility backwards. Claimant worked as a boilermaker for various employers from 1966 through 2012 when he retired. At that time, he was working for NAES. Following his retirement, claimant worked seasonally for SCI fabricating parade floats from 2013 through 2016. This seasonal work involved sawing, welding, grinding, and hammering. In 2014, claimant was diagnosed… Continue reading

In the midst of COVID-19 pandemic, Oregon Court of Appeals issues troubling ruling for processing new/omitted condition claims

The Oregon Court of Appeals issued its decision in Coleman v. SAIF, 304 Or App 122 (2020) on May 13, 2020. Claimant filed a claim for a left knee injury on June 12, 2015. On June 29, 2015, claimant and his attending physician submitted an 827 form for a new/omitted condition claim for medial femoral chondral defect in the left knee. The carrier issued an initial notice of acceptance on August 11, 2015, accepting a left knee strain and contusion; there was no reference to the June 29, 2015 827 form. In a chart note dated October 15, 2015, claimant’s attending physician referenced the June 2015 827 form and indicated it needed to be addressed by the carrier. The carrier… Continue reading

Oregon Supreme Court rules that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable

In a much-awaited decision, the Oregon Supreme Court recently ruled in Garcia-Solis v. Farmers Ins. Co., 365 Or 26 (2019) that medical services for conditions caused in material part by the work injury incident, not just accepted conditions, are compensable under ORS 656.245(1)(a). In relevant part, ORS 656.245(1)(a) states that “For every compensable injury, the insurer or the self-insured employer shall cause to be provided medical services for conditions caused in material part by the injury for such period as the nature of the injury or the process of the recovery requires.” This case involves a 2009 work injury, in which a food server sustained bodily injuries. Over the next two years, the insurer accepted numerous musculoskeletal conditions. In 2012,… Continue reading

Court of Appeals Case Reaffirms Objective Evidence Required For Reopening

In Hendrickson v. Dep’t of Labor & Indus., the Washington Division One Court of Appeals reaffirmed what evidence must support a reopening application. Claimant injured her middle and lower back in October 2007. The Department closed her claim in May 2012 with a category 4 dorso-lumbar impairment award. Just prior to claim closure, claimant complained to Dr. Martin she was “having ongoing pain all over.” In September 2013, claimant filed a reopening application, which the Department denied in February 2014. Claimant appealed. At hearing, claimant’s medical expert, Dr. Martin, testified that claimant’s cervical and lumbar MRI scans taken prior to claim closure and those taken in 2014 “were essentially unchanged” and there were “no objective findings of worsening” in claimant’s… Continue reading

Oregon Court of Appeals further defines susceptibilities or predispositions vs. preexisting conditions.

The Oregon Court of Appeals recently decided another case addressing what qualifies as a preexisting condition. Doris L. Lowells v. SAIF, 285 Or App 161 (2017). In Lowells, the court confirmed “chronic pain disorder” was not a compensable occupational disease because the major cause of the condition was claimant’s weight, deconditioning, and chronic tobacco use. Claimant argued on appeal that those personal factors should not be considered because they were “mere susceptibilities or predispositions.” The court previously discussed preexisting conditions and confirmed if a condition merely renders a worker more susceptible to an injury, but does not actively contribute to damaging the body part, it cannot qualify as a preexisting condition. Corkum v. Bi-Mart Corp., 271 Or App 411, 419,… Continue reading

What can Brown do for you? In a long-awaited decision, the Oregon Supreme Court reverses Brown v. SAIF

It has been almost three years since the Oregon Court of Appeals issued its decision in Brown v. SAIF, 262 Or App 640 (2014), finding that a “compensable work injury” referred to the injurious incident and all the conditions that flowed from it, accepted or not. The case was appealed to the Oregon Supreme Court, which issued its decision on March 30, 2017, reversing the Court of Appeals’ decision and affirming the Workers’ Compensation Board decision. In a lengthy opinion, the Supreme Court ruled that the term “compensable injury” shall be interpreted to mean only the medical conditions accepted by the insurer or self-insured employer. This case involved a combined condition denial. The claim was accepted for a lumbar strain… Continue reading

LHWCA Caselaw Summary

The following is a review of recent relevant Longshore and Harbor Workers’ Compensation Act caselaw. There were relatively few decisions and none created new law with the possible exception of the 4th Circuit’s decision in Metro Machine Corporation. The Benefits Review Board issued 13 LHWCA decisions in November, 5 in December, and has not posted January decisions on its website. All of the Board decision were designated as unpublished. They are instructive but do not set precedent. Average Weekly Wage – §10(c) No mandate to base average weekly wage exclusively on overseas earnings. Kuza v. Global Linguist Solutions, LLC, BRB 16-0227, 12/8/16 (unpublished). In 2012, for three and one-half months, claimant worked for UPS in the… Continue reading

Claimant only required to show idiopathic factors were less likely to have caused unexplained injury

Vaniman-Megan_160-x-222The Oregon Court of Appeals established new case-law on claimant’s burden of proof in “unexplained fall” claims. If an injury is unexplained, as a matter of law, it is presumed to arise out of employment. Whether an injury is unexplained, is a question of fact. An injury is only deemed truly unexplained if the claimant eliminates idiopathic factors as causative. In Sheldon v. U.S. Bank, claimant fell in the lobby of her employer’s building. U.S. Bank denied the claim and argued her fall was caused by her diabetes and obesity. The Workers’ Compensation Board agreed and determined because there was medical evidence demonstrating diabetes and obesity can contribute to balance problems her fall was not truly unexplained.… Continue reading

“Good cause” for untimely injury filing does not require medical evidence

Evenson, Andrew_167x222Under ORS 656.265, notice of an accident resulting in an injury must be given immediately by the worker, but not later than 90 days after the accident. Failure to give notice of a workplace incident bars an injury claim unless the employer already had knowledge of the injury or death; the worker died within 180 days of the date of injury; or the worker can establish “good cause” for failure to give notice within 90 days after the alleged incident. The Court of Appeals of Oregon recently ruled in Dalia R. Lopez v. SAIF, 505 Or. App. 679 (2016), that a “good cause” showing for untimely injury filing does not require medical evidence. In this case, claimant’s regular work activities… Continue reading

Claimant’s request for hearing on 10 year old denial is untimely.

Vaniman-Megan_160-x-222On October 26, 2006, SAIF issued a denial of claimant’s injury claim. The denial was mailed via certified mail and a person who identified himself as claimant signed for the denial. In June 2015, claimant requested hearing on the denial. Claimant testified that the address the denial was sent to was his address but denied signing for it. Claimant argued the statutory timeline for requesting the hearing did not start until he was made aware of the denial in June 2015. The Board first held the relevant time period for starting the statutory timeline is the date the denial is mailed, not the date claimant became aware of the denial. The Board next held, per ORS 656.319(1), there… Continue reading