54 Van Natta 19 (2002). MARTIN N. MONTES, Claimant.
Case Date | January 10, 2002 |
Court | Oregon |
Oregon Worker Compensation
2002.
54 Van Natta 19 (2002).
MARTIN N. MONTES, Claimant
19In the Matter of the Compensation of MARTIN N.
MONTES, ClaimantWCB Case No. 00-07376ORDER ON REVIEWWillner Wren Hill and Uren, Claimant AttorneysVavrosky Maccoll Olson Et Al, Defense
AttorneysReviewing Panel:
Members Haynes, Bock, and Biehl.Claimant
requests review of Administrative Law Judge (ALJ) Peterson's order that upheld
the insurer's denial of claimant's injury claim for a right index finger
condition. On review, the issue is compensability. We
adopt and affirm the ALJ's order with the following supplementation. Claimant suffered a crush injury to his right index finger
on July 28, 2000, when his hand got caught between a heavy section of rolling
pipe and a wooden wedge. (Ex. 4-1). The insurer denied the claim on the basis
that claimant's consumption of alcohol was the major contributing cause of his
injury. (Ex. 11). See ORS 656.005(7)(b)(c). Claimant requested
a hearing. The ALJ, relying on the opinion of Dr.
Burton (insurer-arranged record reviewer) determined that, at the time of the
injury, claimant was impaired by alcohol, and that the impairment was the major
contributing cause of his injury. Consequently, the
ALJ upheld the denial. The parties agree that
claimant has established a prima facie case of compensability.
Consequently, to defeat a finding of compensability under ORS 656.005(7)(b)(C), the insurer must prove, by a preponderance of the
evidence, that claimant's "consumption of alcoholic beverages" was the major
contributing cause of the injury. Erika W. Ortman, 51 Van
Natta 2012 (1999). The cause and effect of the use of
alcohol or controlled substances is a medical question requiring expert medical
opinion. See Uris v. CompensationDepartment,
247 Or 420 (1967); Ortman, 51 Van Natta at 2012. The "major
contributing cause" is the cause that contributes more to claimant's injuries
than all other factors combined. See, e.g., McGarrah v. SAIF,
296 Or 145, 146 (1983). Dr. Burton was the only
medical expert that offered an opinion regarding claimant's impairment. Basing
his opinion on a urine test showing a urine alcohol 54 Van Natta 19 (2002)20concentration of 0.06 gm/dl taken about 5 hours after the injury, Dr.
Burton opined that claimant was impaired from alcohol consumption at the time
of his injury. (Ex. 15-3...
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