Representative Cases

We have won numerous precedent setting cases for injured workers. A sampling of these Oregon Appellate Court Opinions are cited here:

Godfrey v. Fred Meyer Stores
BCW&S ensured that a cashier was not denied Workers’ Compensation merely for failure to give written notice after she had explained the details of her injury to her employer. The cashier reported tearing her wrist while scanning items at the register. Although she notified her employer the next day and he wrote down the details of the event, she did not file a written report requesting compensation until about a year later. The employer argued that she was barred from recovery for failure to provide notice within a year.

This case made an important determination on what kind of notice an employee must file after an on-the-job injury to gain the possibility of Workers’ Compensation. The Court of Appeals ruled that notice does not have to be written by the employee: looking to the spirit of the law, the Court said that an employee meets the requirements for providing notice if he gives an employer an oral statement that includes enough information to let the employer determine whether an investigation should take place. Because the cashier did this in her discussion with her employer, the Court of Appeals ruled that she is eligible for Workers’ compensation.

Fred Meyer Stores v. Godfrey, 218 Or App 496, 180 P.3d 98 (2008)
http://www.publications.ojd.state.or.us/A134247.htm

Cervantes v. Liberty Northwest Insurance Corporation
We persuaded the Court of Appeals to award our client attorney fees after he was forced to seek our assistance. Workers’ Compensation laws allow an employee to collect an attorney fee if a claim is originally denied and the employee must obtain an attorney make the claim successful, and the Court adopted a flexible view of when a Workers’ Compensation claimant can request these fees.

The employee in this case reported left groin pain, and there was some confusion over whether it was caused by a hernia or by tendinitis. He filed a Workers’ Compensation claim, and the insurer sent him a confusing denial letter. He then sought Black Chapman Petersen and Stevens to represent him in a re-hearing. After he had gotten attorneys, the insurance company notified him that his claim was accepted, and he requested attorney fees. The Insurance company said he did not meet the requirements for attorney fees.

First, the company said it had not actually denied the claim; it only denied that the cause of the pain was a hernia. The court of Appeals agreed with us that the letter may have been unclear, but it was fair for the employee to assume that a denial letter would only be sent if the claim were denied. The insurance company then argued that the employee did not deserve attorney fees because the company would have rescinded the claim anyway and therefore he did not actually need an attorney. The Court of Appeals ruled that it would not be appropriate or fair to say that an employee needs to be absolutely certain a claim would be denied without the assistance of an attorney. A reasonable belief that an attorney is necessary is enough to collect attorney fees if the case is successful. By allowing this approach instead of requiring an employee to be certain he needs a lawyer, the Court of Appeals removed a lot of financial pressure from injured employees who reasonably believe in the need for an attorney to help them collect Workers’ Compensation.

Cervantes v. Liberty Northwest Insurance Corporation, 205 Or App 316, 134, P.3d 1033 (2006)
http://www.publications.ojd.state.or.us/A125495.htm

Stuart v. Hearthstone Manor
A woman was walking back from the employee cafeteria to her usual place of work, was briefly distracted looking at blossoms on a tree, and struck her leg on an obstacle which caused her an injury. An injury needs to be sufficiently connected to a person’s work to qualify the person for Workers’ Compensation benefits. Her employer argued that the leg injury was not connected to work for two reasons. First, he said that she should not be compensated because since she was walking back from her lunch break, the injury did not occur during her time at work. We helped her prevail over this argument by quoting the parking lot rule, which states that an employee’s injury happens during the course of work if it is the result of travel to or from work and it occurs in an area the employer controls.

The employer also raised the argument that since she was observing blossoms on a tree when she stuck the obstacle, she should not be compensated because she was engaged in an activity that was primarily for her pleasure and thus not closely related to work. When the Court of Appeals applied the parking lot rule, it also rejected this argument and stated that her primary purpose was traveling back to work and that viewing flowers was only a brief and insignificant detour from that. The Court of Appeals affirmed the Workers’ Compensation award, and the employee was able to recover money for her work-related injury.

Hearthstone Manor v. Stuart, 192 Or App 153, 84 P.2d 208 (2004)
http://www.publications.ojd.state.or.us/A119321.htm

Cooper v. Jeld-Wen
We helped the victim of a fall-induced back injury keep benefits which he had already been awarded which his employer later attempted to revoke (this denial of a claim that had already been accepted is called a “back-up” denial). Through this case we helped to establish that an offer of benefits is firm, unless new and unanticipated evidence emerges after that offer.
After falling from a considerable height off of a ladder at work, an employee had an MRI, and the Doctor concluded that the fall caused a compression fracture. The employer accepted this claim. After a second MRI, the Doctor changed his opinion, but the employer still issued a second statement accepting the claim after this second MRI.

At issue in this case was when an employer may issue a back-up denial. In general, an employer may have the option of issuing a back-up denial if “later-obtained evidence” comes to light after the claim was accepted. However, an employer may not deny a claim simply because he re-evaluated old evidence and changed his mind.

Although the Doctor’s second opinion might possibly have been later-obtained evidence which would let the employer deny the original claim, the Court held that the employer had, or should have had, this evidence by the time he issued the second statement of acceptance. Since all of the medical information was available at the time of this second acceptance, it was final and he was not free to revoke it. The result was that the employee kept the Workers’ Compensation benefits he had been promised.

Jeld-Wen v. Cooper, 192 Or App 279, 84 P.3d 1128 (2004)
http://www.publications.ojd.state.or.us/A119838.htm

Gavlik v. American Medical Response
We helped an on-call emergency medical technician receive compensation for toxic fume inhalation which occurred while she was assisting in a road-side emergency. Her employer argued that her injury was not covered by Workers’ Compensation because the roadside assistance she provided was not connected to her work – in other words, they said she was merely behaving voluntarily as a “good Samaritan” and not under work-related duties. After we successfully argued for compensation before the Review Board, the employer took the case to the Oregon Court of Appeals, and we represented the employee there. Since an injury is only compensable if it occurs within the course of work and is the result of a work-related risk, our most significant task was demonstrating that the employee’s work environment produced some obligation for her to assist as she did with roadside hazards. We pulled together evidence from two major sources: previous comments by her employer that he would provide assistance in similar situations, and a Patient Care Standards handbook. Both of these pointed to some work-related responsibility on her part to investigate accidents she observes on call for the purpose of transmitting information about them. Based on this information, the Court of Appeals agreed with us that she was obligated to act the way she did, and therefore that she was entitled to Workers’ Compensation for her fume inhalations.

American Medical Response v. Gavlik, 189 Or App 294, 76 P.3d 117 (2003)
http://www.publications.ojd.state.or.us/A118712.htm

Jackson County v.Wehren
A county road-worker experienced neck and shoulder pain after repeated work-related strains. He later experienced a self-inflicted injury that was not related to work. He experienced more neck pain after this injury. Since there were two separate injuries that could have caused the pain, when the worker sought compensation there was a disagreement over whether the pain resulted primarily from the work-related injury or the later unrelated one. We helped him persuade the Review Board that the pain was the result of the work-related, compensable injury. The County took the case to the Oregon Court of Appeals, which also agreed with us.

When two parties disagree over the cause of symptoms, it is very important to bring the appropriate expert testimony to the court room. In this case there was conflicting expert testimony, so the Review Board and the Court of Appeals had to determine how well-reasoned and factually complete the conflicting opinions were. By ensuring a thorough Medical examination by our expert and using the opposing expert to highlight the similarities between his views and ours, we persuaded the Review Board and the Court that the primary cause of the injuries were work related, and this secured Workers’ Compensation for our client.

Jackson County v. Wehren, 186 Or App 555, 63 P.3d 1233 (2003)
http://www.publications.ojd.state.or.us/A114211.htm

Icenhower v. Saif Corporation
A man had a nerve root injury which was already present when he started his employment. However, his employment made the injury significantly worse. While the employee felt he deserved Workers’ Compensation through the job that made the condition worse and more painful, the employer denied responsibility because the employee was already injured before he started the job.

We solved this dispute by referencing the “last injurious exposure rule,” which says that the last employer whose work conditions may have caused an injury to become worse responsible for Workers’ Compensation for the injured employee. The Workers’ Compensation Review Board and the Oregon Court of Appeals agreed with us on this, but the employer also brought in expert witnesses to testify that the employer’s conditions did not worsen the injury. Fortunately, we brought in a Physician whom the Review Board and Court of appeals both found more convincing, and our client received compensation for attorney expenses and for his injury.

Icenhower v. SAIF Corporation, 180 Or App 431, 43 P.3d 431 (2002)
http://www.publications.ojd.state.or.us/A110770.htm

Klutsenbeker v. Jackson County
We earned our client a second opportunity to argue her case for Workers’ Compensation after the Review Board allowed an employer to deny responsibility for symptoms of a spine condition. Although the employer had already accepted responsibility for the patient’s low back condition, he argued that the spinal symptoms she was experiencing came from a separate degenerative spinal condition. We relied on the legal theory that if an employer voluntarily admitted that he was responsible for a low back condition, he must also be accepting responsibility for anything that causes that condition, which included the degenerative spinal condition. We also argued that we should be allowed to introduce new medical evidence that would show that the spinal condition caused the lower back condition — evidence that would make the employer responsible for the spinal condition. The Court of Appeals agreed with us on the legal theory of accepting responsibility for causes and on the admissibility of new evidence, and it sent the case back to the Review Board with instructions to consider this new evidence.

Klutsenbeker v. Jackson County, 185 Or App 96, 57 P.3d 925 (2002)
http://www.publications.ojd.state.or.us/A112885.htm

Henwood v. Saif Corporation
An employee developed carpal tunnel syndrome while employed in California, but she later had a job in Oregon which worsened the symptoms. Her Oregon employer denied responsibility because the condition had already existed when the employee started the job. The employer raised two arguments: first, that where a condition was not caused but only worsened at a job, the employee is responsible for demonstrating that that job is the major factor responsible for the worsening, and second, that the previous California employer was the person responsible for any compensation the employee deserved. After we helped our client prevail before the Workers’ Compensation Review Board, the employer and its insurance company took the case to the Oregon Court of Appeals, where we argued it again. In response to the employer’s first argument, we argued based on previous cases that if the employee can demonstrate that some past or current employment (not just the employment at issue in the trial) was primarily responsible for worsening the injury, then any employment that could have been responsible for this worsening can be held responsible for providing Workers’ Compensation benefits. The Court of Appeals accepted our position and held that this employer could have been responsible for the worsening of the carpal tunnel.

To the second argument, the Court ruled that Oregon law does not have the ability to hold a previous out-of-state employer responsible, and consequently Oregon will assign responsibility to the first Oregon employer responsible for an injury. The court emphasized that this rule creates the risk that an injured worker will be able to collect from employers in two different states, but the alternative of shifting responsibility to out-of-state employers would run the more dangerous risk that an injured worker could not receive assistance in either state. In this way, we gained benefits for our client and also encouraged a worker-friendly posture on the Court’s part which holds protection of injured workers as paramount.

SAIF v. Henwood, 176 Or App 431, 31 P.3d 1096 (2001), revd 333 Or 463 42 P.3d 1245
http://www.publications.ojd.state.or.us/A110815.htm

Hill v. Qwest
An employee injured his back at work, and the employer signed a contract accepting responsibility for it. When the employee later sought compensation for a continuing back condition, the employer denied responsibility for the condition and attributed it to problems the employee had already had before the work injury. We helped the employee overcome this denial. Typically, an employee cannot seek Workers’ Compensation through an employer when the symptoms are solely from a problem that was present before the job began. However, we demonstrated that this situation was different because the employer had already accepted responsibility for a back injury. We asked the Court of Appeals to answer the question of whether an employer who accepts responsibility for one injury must also accept responsibility for any underlying causes of that injury. The Court agreed with us that an employer must accept this kind of responsibility, because there would be unacceptable confusion and delays if an employer could accept responsibility for one problem and then later deny responsibility for its causes. Thus, the Court concluded that the employer had accepted responsibility for the underlying back condition. It sent the case back to the Workers’ Compensation Board and instructed the boar that, if the new form of back pain was the result of this underlying condition, then the employee had a right to collect Workers’ Compensation for it.

Hill v. Qwest, 178 Or App 137, 35 P.3d 1051 (2001)
http://www.publications.ojd.state.or.us/A112816.htm

Sisters of Providence and Aetna Casualty Co. v. Ridenour
An employee had one low back injury, then she had another one seven years later. She sought Worker’s Compensation from the employer where she had her more recent injury, and the insurance company argued that it was not responsible for compensation because her symptoms may have resulted from the earlier injury at another workplace and not from the most recent workplace. We argued under the legal theory that if two injuries occur to the same body part, the Court assumes that the most recent injury caused the symptoms and an insurance company is responsible for disproving this assumption. The insurance company did not try to disprove the assumption. Instead, it argued that it our claim that both injuries affected the low back was much too broad, and that the body parts in question should be defined so narrowly and specifically that the two injuries would not be seen as involving the same “body part.”

We argued that no prior cases supported defining “body part” so narrowly, and that two different injuries to the lower back was a specific enough way to view the situation. The Court agreed with us, and therefore it held that the most recent back injury was assumed to be responsible for her symptoms. The employee was able to retain compensation through the employer where that injury took place.

Sisters of Providence v. Ridenour, 162 Or App 467, 986 P.2d 688 (1999)
http://www.publications.ojd.state.or.us/A99664.htm

Dibrito v. SAIF Corporation
A state employee requested time off, unpaid, to deal with a medical condition. A confrontational meeting denying this request left her mentally unsettled, but also left her the victim of a set of physical symptoms aggravated by the workplace stress. Due to the work- related nature of her injuries, the employee sought Workers’ Compensation for her mental and physical conditions. The Review Board issued a single refusal for both claims together. At this point, the woman sought help from Black, Chapman, Petersen, and Stevens. After the Oregon Court of Appeals agreed with the Review Board, we brought the case before the Supreme Court of Oregon.

The Supreme Court ruled that a Workers’ Compensation Review Board is charged with the responsibility of carefully determining which standards apply to which claims and giving due consideration to each claim according to the relevant standards. Because the Board could not have applied correct standards to each individual claim if it addressed them both together, the Supreme Court sent the case back to the Review Board with instructions for reconsideration.

The employee ultimately was unable to persuade the board to change its original position. However, not only was the case successful in affording her a second chance to argue for relief, but it also solidified the principle that a Workers’ Compensation Review Board must carefully distinguish and apply applicable standards to individual claims rather than quickly dismissing all claims as a single unit, and this represents a significant victory for any employee who seeks compensation for several different workplace injuries.

Dibrito v. SAIF Corporation, 318 Or. 381, 870 P.2nd 220 (1994)

Raymond Cox v. Saif Corporation

A worker suffered a hand injury while on the job, and he later had trouble with two medical conditions: diabetes and hyperlipidemia. His Doctor testified that these conditions had two causes. One was a medical condition. At the time of the injury, this relationship between the hand injury and the medical conditions was sufficient to allow the worker compensation for treatment. After the fact, the law was changed so that the treatment for such injuries would only be paid for by Workers’ Compensation where the work-related injury is the major (more than 50 percent) cause of the medical conditions.

Based on these new rules, the Review Board ruled that the worker was unable to receive Workers’ Compensation payments for his diabetes and hyperlipidemia. The primary issue this case addressed was whether the Board was allowed to deny this employee’s medical compensation based on after-the-fact legislation that would have made it harder to obtain. Black, Chapman, Petersen, and Stevens represented the injured employee before the Supreme Court of Oregon, and the Court held that the law needed to be applied as it was written when the man filed and pled his original claim. Through this decision, the case established that, in this area of law, employees may rest assured that they are protected by the laws in existence at the time of their injuries.