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Oregon Court Decisions

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.

A particular decision may not reflect how Courts will rule in later cases with similar facts though it may fall under precedent, which is a previously decided case that is considered binding in the court where it was issued and in all lower courts in the same jurisdiction.

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Oregon Supreme Court

SAIF Corp. v. Lewis (SC S47997) [Details]
HOLDING: Objective findings of an injury or disease requires only that an indication is verifiable at some time, or that physical findings or subjective responses to a physical examination be capable of being reproduced, measured, or observed.

DeMendoza v. Huffman (SC S48430) [Details]
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.

SAIF Corp. v. Kurcin (SC S46750) [Details]
HOLDING: The Workers' Compensation Board may uphold an ALJ's decision to grant a continuance unless it constitutes an abuse of discretion.

Panpat v. Owens-Brockway Glass Container, Inc. (SC S48419) [Details]
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."

Schuler v. Beaverton School Dist. (SC S47320) [Details]
HOLDING: Claimant was properly denied compensation because a work related injury was not the major contributing cause for the needed treatment.

Storm v. McClung (S47680) Oregon Supreme Court [Details]
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.

Schaff v. Ray's Land & Sea Food Co., Inc. (S48360) [Details]
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.

Multifoods Specialty Distribution v. McAtee (S48360) [Details]
HOLDING: Employer can deny claim when the injury is not the major contributing cause for continued treatment.

Rubalcaba v. Nagaki Farms, Inc. (SC S48217) [Details]
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).


Oregon Court of Appeals

Davis v. SAIF (A114622) [Details]
HELD: An injured worker's substantive entitlement to aggravation benefits is dependent on the relationship of the worsened condition to the original injury.

Lecangdam v. SAIF Corp. (CA A115535) [Details]
HELD: Claimant must show that his work exposure was the major contributing cause of his overall hearing loss.

Kaeo v. SAIF Corp. Deits, C. J. (CA A114015) [Details]
HELD: 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.

Klutsenbeker v. Jackson County (CA A112885) [Details]
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.

Evans v. Multnomah County Sheriff's Office (A112917) [Details]
HELD: 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.

Machuca-Ramirez v. Zephyr Engineering, Inc. (CA A113765) [Details]
HELD: 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.

Day v. Advanced M&D Sales, Inc. (CA A112790) [Details]
HELD: A plaintiff who accepts workers' compensation benefits may be equitably estopped from pursuing a civil claim.

Talley v. BCI Coca Cola Bottling (A113826) [Details]
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.

Sosnoski v. SAIF Corp. (CA A112357) [Details]
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.

SAIF Corp. v. Ricker (CA A111064) [Details]
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.

Hiner v. Crawford Health & Rehabilitation (A113029) [Details]
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.

Sisters of Providence v. McGuire (CA A113375) [Details]
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.

SAIF v. Jensen (CA A113528) [Details]
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.

Getz v. Wonder Bur (CA A114152) [Details]
HELD: In this case, the second injury is an injury arising out of and in the course of employment and, therefore, compensable. Note: Involves a "physical capacity evaluation" that claimant was ordered to undergo by his treating physician.

Vsetecka v. Safeway Stores, Inc. (CA A113353) [Details]
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.

Lovelace v. Bd. of Parole and Post-Prison Supervision. (CA A109609) [Details]
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.

Gonzalez v. SAIF Corp. (CA A114224) [Details]
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).

Kenimer v. SAIF Corp. (CA A113239) [Details]
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.

Rasmussen v. SAIF. (CA A112064) [Details]
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.

Hanson v. Dan's Steel Co. (CA A111945) [Details]
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.

Buss v. SAIF. (CA A116019) [Details]
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.

Longview Inspection v. Snyder (A115166) [Details]
HELD: 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.

Reynolds v. Hydro Tech Inc. (A111078) [Details]
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.

Allen v. Paula Ins. (CA A112904) [Details]
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.

Skyline/Homette Corp. v. Boling (CA A115406) [Details]
HELD: Substantial evidence supports the Board's determination that claimant's conditions and limitations were ongoing and predated the initial date of closure.

Manley v. SAIF (CA A110793) [Details]
HELD: An insurer cannot close and rate a claim until both the original accepted condition and any direct medical sequelae are medically stationary.

Logsdon v. SAIF Corp. (CA A109321) {Details]
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.

Sunrise Electric, Inc. v. Ramirez (CA A112564) [Details]
HELD: 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.

Trujillo v. Pacific Safety Supply (CA A99410) [Details]
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.

Weyerhaeuser v. Hagebush (CA A115405) [Details]
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.

Christman v. SAIF (A109424) [Details]
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.

SAIF v. Custer (A110775) [Details]
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.

SAIF v. Webb (A110994) [Details]
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.

Sound Elevator v. Zwingraf (A111284) [Details]
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.

Wallowa County v. Fordice (A113714) [Details]
HELD: Military service is "employment" for purposes of the workers' compensation statutes.

Express Services, Inc. v. Conradson (CA A110740) [Details]
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).

Beaver v. The Mill Resort and Casino (CA A110473) [Details]
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.

Halsey Shedd RFPD v. Leopard (CA A108543) [Details]
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.

Icenhower v. SAIF Corp. (CA A110770) [Details]
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.

Norstadt v. Liberty Northwest Ins. Corp. (CA A111706) [Details]
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.

Seeley v. Sisters of Providence (CA A110771) [Details]
HELD: ORS 656.266 prohibits a claimant from proving that work caused his or her condition solely by disproving other potential causes. 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.

Ortman v. Laidlaw Transit (CA A108891) [Details]
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.

BCI Coca Cola Bottling Co. v. Adamson (CA A112732) [Details]
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.

Gilbert v. Cavenham Forest Industries Division (CA A112661) [Details]
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.

Alanis v. Barrett Business Services (CA A105513) [Details]
HELD: 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.

Everett v. SAIF (CA A111969) [Details]
HELD: 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.


U.S. Court of Appeals for the Ninth District

Martinez v. Signature Seafoods Inc. (01-35768) [Details]
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.

EEOC v. UPS (01-15410) [Details]
HELD: 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 under the Americans with Disabilities Act (ADA).

Stevedoring Services of America v. OWCP (01-70354) [Details]
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.

State of Arizona v. Bliemeister (01-16058) [Details]
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.


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