Board Case Update: 08/03/11

Lily T. Blank, 63 Van Natta 1515 (2011)
(ALJ Rissberger)

Claimant fell while on a break in the employer’s lunch room.  First, she said she fell forward after tripping.  Later, she said she may have just lost her balance.

Claimant was examined by Drs. Sandell and Green.  Dr. Green agreed, ultimately, that no “work-related” risks for Claimant’s fall could be identified.

In setting aside the employer’s denial of Claimant’s injury, the ALJ concluded that Claimant’s fall was “unexplained” and thus arose out of her unemployment.  On review, the self-insured employer argued that the fall was not, in fact, unexplained.  It relied upon Dr. Green’s uncontroverted opinion that identified multiple potential causes of Claimant’s fall.

The Board found that there was no dispute that Claimant’s injury occurred “in the course of” her employment.  The question was whether the injury “arose out of” her employment.  The Board noted, “A fall occurring within the course of employment results from a “neutral” risk and arises out of employment, as a matter of law, if all idiopathic causes of the fall have been ruled out.  In this case, idiopathic factors identified by Dr. Green were not ruled out, so the risk was not “neutral.”  The Board concluded, “In sum, because claimant has not eliminated the potential idiopathic causes of her fall identified by the medical evidence, her fall was not truly “unexplained.”  Because of this, her injury claim was not compensable.  Reversed

Karen L. Schueller-Susbauer, 63 Van Natta 1526 ( 2011)
(ALJ Fulsher)

The self-insured employer requested review from an Opinion & Order that affirmed an Order on Reconsideration that set aside a Notice of Closure because there was “insufficient information” upon which to base PPD.  On review, the employer argued that it possessed sufficient information to determine Claimant’s permanent impairment based on the compensable lumbar strain component of the accepted combined condition that had been denied prior to claim closure, pursuant to ORS 656.262(7)(b).

A combined condition claim may be closed after the accepted injury is no longer the major contributing cause of the worker’s combined condition, a “major contributing cause” denial has been issued, and there is sufficient information to determine the extent of permanent disability.  ORS 656.268(1)(b).

The Board found that the Appellate Review Unit erred in finding there was not enough information in the record upon which to determine the extent of permanent impairment.  This was because Claimant’s attending physician had opined that Claimant’s accepted lumbar strain had resolved without impairment and that his residual problems were the result of his denied preexisting sacroiliitis condition.  In addition, an independent examiner had concluded that the lumbar strain component of the combined condition was no longer the major cause of disability, need for treatment, or work restrictions.  Again, the attending physician agreed.  Reversed

Query:  What more, in the way of “sufficient information” does the Department need?  If it’s sufficient for the attending physician, why is it not sufficient for someone without a medical degree?

Jeanette Y. Jensen, 63 Van Natta 1542 (2011)
(ALJ Lipton)

The employer requested review of an Opinion & Order that found it responsible for Claimant’s injury.

Here’s the scene:  The employer makes those telephone books that we all love to find on our doorstep.  It contracts with a warehouse, every year, for seven to eight weeks, to provide a distribution center for the Yellow Books.  The employer had a temporary office in the warehouse where the books were delivered and the delivery people were hired.

Claimant was hired toward the end of the delivery period.  Only a few routes remained.  She signed a “directory distribution contract” with the employer, whereby she agreed that she was an independent contractor.  After she was hired, she injured her knee in a slip & fall in the employer’s warehouse.  The employer denied her claim, alleging that she was not a “subject worker.”

The Board wound its way through 14 pages, analyzing the “direction and control” issues and the “work connection test” and the “nature of the work” test.  The employer had tried to argue, to no avail, that it had no control over Claimant’s work activities.  But, the clincher was summarized, as follows:

“Although the delivery of phonebooks was seasonal, it was a regular part of employer’s business.  The employer acknowledges that delivery of the phonebooks was necessary to the ultimate success of its business, but it argues that publishing is integral to the business.

“We do not agree with the employer’s argument that the delivery of the phonebooks is separate from it’s primary business of advertising and publication.  The purpose of the phonebooks is to allow businesses who advertise in the books to sell their services and products, which necessarily requires someone to purchase those goods and services. The delivery of the phonebooks to residences and businesses is a critical part of that process.  Without delivery of the phonebooks, the advertising cannot be effective.”

In other words, distribution is an integral part of publication, as every good writer knows.  Affirmed