Drivers Selling Employer’s Products are “Subject Workers.”

lance johnsonThe Court of Appeals decided RJ Enterprises LLC of Oregon v. Department of Consumer and Business Services, February 27, 2013. The employer sought review of a Department of Consumer and Business Services (DCBS) order upholding audit billings for workers’ compensation premiums for truck drivers. It argued the drivers that delivered its products were independent contractors, as specified in the contract. The Court disagreed. The employer is a frozen meat distributing company which uses truck-drivers to deliver its products. Although the drivers make their own schedules and delivery routes, they lease their trucks and are paid on a commission basis from the employer. SAIF determined the drivers are “subject workers” not independent contractors. An ALJ… Continue reading

Case Alert: Penalties at Claim Closure

sarah ewing In the most recent workers’ compensation case from the Court of Appeals, Walker v. Providence Health System, the court addressed penalties assessed relating to claim closure. The facts and procedural status of this claim have been over-simplified for this summary. The employer noticed an IME to determine if claimant had any permanent impairment due to her accepted mental health conditions; she did not attend. At the employer’s request WCD issued a suspension order effective until such time as she submits to the designated exam. At the request of claimant’s attorney, she submitted to closing exam by her treating psychiatrist; the report was issued September 29, 2009. The next day, claimant requested claim closure based on the report. The… Continue reading

Longshore Act Update

norman coleAs head of the SBH Longshore practice area, I publish a quarterly summary of recent LHWCA decisions (Benefits Review Board, Courts of Appeal, Supreme Court, and occasionally an ALJ decision). The most recent edition is available on our website, One of the most significant decisions in the last few months probably is the 9th Circuit’s decision in Price v. SSA, which held interest on past due compensation should be based on the one year T-bill rate, but it should be compounded annually, rather than paid as simple interest. When interest is due on unpaid weekly payments, more interest is due on the first week past due than on the last week past due. There is… Continue reading

Board’s Interpretation of a Medical Opinion Must Be Reasonable

lauren odaIn a recent decision, Armenta v. PCC Structural, Inc. (A141790), the Oregon Court of Appeals issued an unfavorable opinion regarding the Board’s ability to disregard an expert’s medical opinion when it does not address the subject in dispute. Claimant sought review of the Board’s Order upholding the employer’s denial of occupational disease claims for cervical radiculopathy and lumbar radiculopathy. Claimant offered Dr. Gritzka’s report as rebuttal evidence. Claimant alleged the Board erred in disregarding Dr. Gritzka’s opinion as to causation of cervical and lumbar radiculopathy. The Board determined that Dr. Gritzka’s report did not address the conditions at issue, cervical and lumbar radiculopathy, and therefore did not consider it in making their compensability decision. The Court… Continue reading

Washington Court of Appeals Addresses Burdens of Proof in Occupational Disease Cases

lee ann lowePotter v. Department of Labor and Industries, a decision issued yesterday by the Division One Court of Appeals, is a good reminder that building strong medical evidence based on the applicable legal standards can be critical to a case. In June 2007 Ms. Potter’s employer moved into newly remodeled offices. In the first few weeks in her new office she noticed a strong chemical odor and a metallic taste in her mouth. She eventually started having a recurring bloody nose and intensifying feelings of disorientation and fatigue. By September 2007 she was working entirely from home. All the tests performed by her doctor were normal, but he suspected the chemicals involved in the remodel were… Continue reading

Oregon Court of Appeals Issues Favorable New Course and Scope Decision

Jamie CarltonIn a recent decision, Schultz v. SAIF Corp., A148840, the Court held that even where a worker is primarily motivated to attend a social event with a supervisor for work related reasons, injuries sustained from voluntary intoxication are not compensable. In this case, claimant testified she accompanied her supervisor to a bar for drinks one night after work. He had asked her (and others) out numerous times previously but she had declined all prior invitations and therefore felt obligated to accept in this instance. Claimant wanted to be seen as a “team player.” While at the bar, claimant drank to excess and drove herself home. En route, she entered the freeway going the wrong direction… Continue reading

A Slim Connection Can Still be a Proximate Cause in Washington

lee ann loweYesterday, the Court of Appeals, Division 1, released its opinion in Dep’t of Labor and Indus. v. Shirley. Claimant’s low back claim was closed in 2005 with no PPD award. At the time of claim closure he was only taking ibuprofen and no physician was prescribing opioid medications. He never filed an application to reopen his claim. In 2007 he died after ingesting multiple prescription medications with alcohol. Some of the prescription medications in his system were for low back pain although none were prescribed to him at the time of claim closure. After his death his wife filed for survivor benefits, which the Department denied, and she appealed. On appeal,… Continue reading

OSHA – Potential Employer Knowledge Rule – A Solution in Search of Problem.

Stephen VerotskyThis morning, Michael Wood, the Administrator of Oregon OSHA, convened an “informal gathering” of employers and other stake holders to discuss whether a rule is needed to “help clarify the issue of employer knowledge” when a serious safety violation is issued. The meeting was well attended by various construction trades, private and public entities. Many employers were concerned OSHA had already drafted a rule and was only convening these meetings as “window dressing.” Mr. Wood stated there was no formal rulemaking proposal at this time. Assuming rulemaking goes forward following a series of public forums, Oregon OSHA anticipates a stakeholder advisory group will be assembled in February 2013 with a formal rulemaking proposal occurring some time after… Continue reading

ADA/FMLA Employer Work Group

Jamie CarltonWe hope to see you Thursday, November 8th at the Kaiser & DMEC Oregon/SW Washington ADA FMLA Employer Work Group. Rebecca Watkins and I are partnering with DMEC along with Mike Moses of Kaiser, to host an employer roundtable discussion to answer questions regarding all aspects of the ADA and FMLA. This will be an opportunity for employers to ask questions and discuss their difficult ADA/FMLA cases. The format will be an open forum with a focus on problem solving. The Work Group Session will be from 11:30 – 1 p.m. at the Kaiser Permanente – Town Hall Ballroom, 3704 N. Interstate Avenue, Portland. A free lunch will be provided. If you would like… Continue reading

Court Less Likely to Find Parking Lot Injuries Compensable?

rebecca watkinsIn Enterprise Rent-A-Car v Frazer, a divided Court of Appeals reversed the WCB’s finding of compensability in a parking lot injury. The employer at issue had a storefront in a strip mall, including several parking spots its rental cars occupied. It had two break rooms, but employees were allowed to leave the premises at breaks. Frazier, the worker, took a paid break in a smoking hut on the strip mall property about 100 feet from her workplace; the smoking hut was not owned or controlled by the employer. During the break, she vented with coworkers about customers and smoked a cigarette. As she returned to her workplace, she caught her foot in a hole in… Continue reading