Nature of the Proceeding and Relief Sought

1

PETITIONER’S BRIEF

STATEMENT OF THE CASE

Nature of the Proceeding and Relief Sought

Claimant/Petitioner David Hanson (“Claimant”) appeals from the Workers Compensation Board’s (“Board”)Third Party Distribution Order (“Order”) setting aside the distribution as agreed upon by the co-plaintiffs, husband and wife David and Linda Hanson (“Hansons”), and ordering a distribution that failed to comply with ORS 656.593(1)[1]. (ER 5-14). Liberty Northwest Insurance Company (“Liberty”) approved a third party personal injury lawsuit in writing on March 26, 2010 and April 12, 2010, and neither counsel for the tortfeasor nor counsel for Liberty conditioned the settlement on apportionment of the loss of consortium claim. (Supp ER 171,172). Claimantrequests the Court reverse the Board’s Order requiring Claimant to send $220,943.38 to Liberty.

Nature of the Order to be Reviewed

The order to be reviewed is a Third Party Distribution Order issued by the Board. (ER 5-14).

/ / /

Basis for Appellate Jurisdiction

This Court has jurisdiction under ORS 656.298.

Effective Date for Judicial Review

The Board issued its Order on January 14, 2016. (ER 14). Claimantfiled and served the Petition for Judicial Review on February 8, 2016, within the 30 days required by ORS 656.295(8). (ER 1-3),

Jurisdiction Basis for Agency Action

The Board issued its Order pursuant to ORS 656.295.

Questions Presented on Judicial Review

1.Whether the Board has jurisdiction to rule on the loss of consortium distribution.

2.Whether Liberty is judicially estopped from asserting the Board has jurisdiction to limit the loss of consortium claim after it filed a

declaratory judgment claim in Clackamas County Circuit Court (“Circuit Court”) and argued the Board did not have jurisdiction. The Board did not address this issue in its Order.

3.Whether the Board has substantial evidence to reduce the loss of consortium distribution agreed upon by Hansons in the third party case.

4.Whether the distribution agreed upon by Hansonsis supported by substantial evidence.

5.Whether the Board exceeded its authority in specifying the sums to be distributed,which Liberty did not request,without consideringany accounting of the costs as required by ORS 656.593(1)(a).

Summary of Argument

1.The Board does not have jurisdiction to rule on the loss of

consortium claim.

In the Finding of Facts, the Board erroneously stated :

Claimant and the paying agency could not agree on the amount of the settlement proceeds to be allocated between his cause of action and his wife’s loss of consortium claim. They chose to submit their dispute to the Board. (ER 6).

In Liberty’s Petition for Relief dated September 27, 2010, it asserted the Board had jurisdiction and that loss of consortium was limited to 10%. (Supp ER 187-189). Claimant, in his Response,stated the Boarddid not have jurisdiction over a loss of consortium claim. (Supp ER 42-43).

The Boardhas reviewed loss of consortium claims in Everett L. Weems, 44 Van Natta 1182 (1992), stating:

Consequently, as the law now stands, paying agency approval of a settlement concerning a loss of consortium cause of action is not required and, what is more, this Board is without authority to consider such a dispute.

(Weems, p. 3 of 4.)

In Weems v. American International Adjustment Co., 319 Or 140, 874 P2d 72 (1994), the Court repeated the Board: “This Board is without authority to consider such a [consortium] dispute.” (emphasis added) (Weems, at p. 76.)

2. Liberty should be judicially estopped from requesting the Supplemental Petition for Relief to the Boardafter arguing to the Circuit Court that the Board had no jurisdiction.

Liberty filed a declaratory judgment action in Circuit Court on August 2, 2012 requesting the Court limit the loss of consortium recovery to 10% (ER 666-671), and arguing extensively that the Board did not have jurisdiction. (ER 82-84) .

3.The Board’s Order is not supported by substantial evidence.

The Board failed to acknowledge and reconcile inconsistencies, errors and omissions in the report and testimony of Liberty’s expert, Mr. Walter Sweek (“Mr. Sweek”).

Mr. Sweekdisputed the conditions accepted by Liberty which are classified as disabling and did not consider them in stating his opinion on the value of the loss of consortium claim. (Tr ___). The accepted disabling conditions are:

a.Class 2 concussion/mild traumatic brain injury with post-concussion syndrome and post traumatic headaches;

b.cervical and lumbar strain;

c.convergence insufficiency;

d.accommodative dysfunction;

e.slight oculomotor dysfunction;

f.cervical stenosis at C5-6 and C6-7;

g.closed fracture left great toe

h.diplopia

i.bilateral tinnitus(Ex 19-147).

Mr. Sweek opined that Claimant was terminated due to economic conditions rather than due to his impairment. (Tr ____). He ignored the value of the loss of household services which was $105,371. (Tr 47;Ex 8). He did not consider that at the time of the motor vehicle accident there were four young children ages 7, 4, 4, and 2. (Tr ___). He opined the value of the case was $250,000 to $400,000 (Tr 37-38), ignoring the total recovery was $1,150,000 (Tr 39-40).

The report of Mr. Sweek’sexpert, upon which Mr. Sweek relied, was that Claimant’s symptoms were caused by somatoform dysfunction. (Tr ___). This is an expert opinion on credibility and could not have been presented to the jury.

4. There is substantial evidence to support the distribution as agreed

upon by Hansons.

David and Linda Hanson had been together since she was 18 and he was 21. (Tr ___). They traveled together as he soared to prominence in the construction industry where he was earning in excess of $200,000 per year, allowing Linda to be a fulltime mother taking care of their young children, ages 7, 4, 4, and 2 at the time of the accident. (Tr ___). David cared for his children and coached for their teams and worked around their home. (Tr 85).

Loss of consortium is evaluated when as a result of an injury, the spouse lost (1) companionship; (2) love; (3) affection; and (4) services. The injury is the disabling conditions accepted by Liberty and disputed by their expert, Mr. Sweek. Linda was entitled to recover for her economic damage for the loss of services previously provided by her husband that had been lost as a result of his injury and for any future services. Mr. Sweek and the Board ignored the evidence that the economic damage from the loss of services was $105,371. (Ex. 8).

5.The Board did not have the authority to specify a distribution.

The matter came before the Board on Liberty’s petition to limit the loss of consortium to 10%. (ER___). It did not request the Board conduct any further calculations. ORS 656.593(1)(a) provides payment of costs and attorney fees. The Board apparently thought a $600,000 recovery would be obtained without costs, including filing fees. The Board did not request that Claimantsubmit a statement of costs and Claimantsubmitted none.

This requires the Board’s Order to be set aside.

FINDING OF FACTS

Claimant accepts the Findings of Facts as stated in the Order, and supplements as follows. Claimant’s background is best described in the Eligibility Evaluation Status Report dated February 23, 2010:

Mr. Hanson was employed as a Project Director, Area Director and Vice President of Regional Operations of ITC Construction Group. ITC has their main offices in Vancouver, Canada and offices in the United States. Mr. Hanson was responsible for the Western Region of the United States. However, the company has now pulled out of the United States and is based solely in Canada. The two contacts included; Mr. Clark Getz, Safety Director, and Mr. Lloyd Tossoff, Chief Operating Officer.

Mr. Clark Getz, Safety Manager: Mr. Getz was contacted on February 16, 2010 to discuss the worker’s return-to-work efforts and skills. Mr. Getz is now the Regional Safety Director for Hatch, Mott & McDonald Construction in Portland, Oregon. He indicated that he worked with Mr. Hanson on the Benson Tower Project, 26 story, 150 condo complex in Portland. This job was in excess of $30 million dollars and was very complex.

Mr. Getz indicated that Mr. Hanson was the Project Manager. When he returned to work he was not the same person as he was prior to his injury. Mr. Getz stated that Mr. Hanson had difficulties tracking conversations, processing the information being presented to him, responding in a coherent manner and in problem solving. He indicated that the worker’s job is very intense and involves high level cognitive skills. Mr. Getz indicated that it was clear that Mr. Hanson was not up for the job and was sent home.

Mr. Getz indicated that Mr. Hanson was a National Figure who had worked on projects from Colorado to Las Vegas to Vancouver, BC to Portland, Oregon and places in between. His projects were all in excess of $5 million and on many occasions up to $100 million. He was highly regarding in the Construction Management field. Mr. Getz indicated that he never worked with Mr. Hanson, again, in the field.

Mr. Lloyd Tossoff, Chief Operating Officer, ITC: Mr. Tossoff indicated that Mr. Hanson remained with the company until November 2008. Throughout that time he had obvious difficulties with multi-tasking, focus, memory, problem solving, flexibility, emotions, spontaneity and initiation. He stated that the simplest way to describe his difficulties is to say “Mr. Hanson had no idea what to do when any problem came up” no matter how small. He just simply stopped what he was doing and was unable to generate ideas about how to move forward.

When questioned, Mr. Tossof stated that prior to his injury he had been the “go to guy” who could handle multiple projects, identify problems and solutions, retain massive amounts of information in his head and communicate effectively with clients, managers, superintendents, design teams, building inspectors, material managers and laborers without difficulty.

Mr. Tossoff stated that Mr. Hanson had such a strong reputation as a Project Manager that ITC won bids based on Mr. Hanson being the Project Manager. His projects ranged from $5 million, up to $100 million.

The worker’s employment with ITC ended in November 2008. Mr. Tossoff indicated Mr. Hanson was laid off as the company pulled out of the United States due to the economy. When questioned, he indicated that Mr. Hanson is Canadian and it is very likely that Mr. Hanson would have been retained had he been able to perform the job.

Mr. Tossoff stated that he does not believe that Mr. Hanson can work as a Project Manager, Superintendent or Supervisor in the construction industry due to the intense nature of the work.

(ER 390-392; Ex 19-80A).

On November 2, 2009, Dr. Erb reported:

He feels that he did not meet anyone’s expectations. He was creating confusion, he was not able to problem solve, was not able to direct staff. He now sees some of the difficulties, which he was unable to see previously. Often when he is trying to sleep he awakens and reflects upon the different scenarios that occurred at work.

He does not complete tasks at home. If he gets distracted then he will go down another path or if there is a decision that needs to be made then he tends to road block and does not finish the task. He becomes frustrated with this. He reports that he has no drive. He even has to talk himself into getting out of bed and showering and getting dressed in the morning. He drives the children to school and that is his only motivation to get out of bed. He has a feeling of indifference and flatness and sadness and has withdrawn. He still has some suicidal thoughts from time to time. It is hard for him to find meaning in anything. This is quite concerning.

(ER 277-278; Ex. 19-67).

Claimant testified consistently with Mr. Getz and Mr. Tossoff. (Tr 73-76). He was considered the number 3 guy in the company, earning approximately $200,000 per year. (Tr 81). He admitted becoming angry at work after the accident. (Tr ___).

He and Linda met when she was 18 and he was 21. (Tr ___). At the time of the accident, their son Lucas was 7, twins Markus and Kayla were 4, and the youngest son, ___ was 2. (Tr ___). Prior to the accident, he was an engaged father and planned on being their hockey coach. (Tr 85).

When he has an anger attack, Linda needs to de-escalate it. Because of his anger, he can’t sit with other parents at his children’s soccer and hockey games. (Tr 96). Under cross-examination, he admitted they have a 5th wheel trailer where he frequently sleeps. They are on the property together but sleep separately. (Tr __).

The facts concerning Linda Hanson are:

Dr. Labs interviewed Mrs. Hanson on 6/11/09:

With Mr. Hanson’s consent, a telephone interview was conducted with his spouse, Linda, on 6/11/09. She expressed ongoing concern about her husband’s mental status, indicating her impression that he is significantly depressed and has lost confidence and self-esteem since he was laid off in November 2008. She indicated that neither she nor her husband really understand what he is capable of doing since his injury. She confirmed that he is independent in self-care activities. She acknowledged that he is currently caring for their 4 year old son at home while she works. She indicated that in January 2009, their son was put into day care because of her concerns about her husband’s depression and decreased anger management; however, due to financial concerns, her husband is now caring for him.

She indicated that prior to his 03/15/07 injury, his anger was logical and appropriate to the situation. She indicated that now, he is easily triggered and explodes without warning. She cited the examples that were previously reported to you. She indicated that her husband seemed to know at some level that his behavior has been inappropriate at times, but that it was “too painful to admit”. She indicated that her husband has sometimes gotten so angry that his turned people [sic]. (ER 275-276; Ex. 9-57).

Linda Hanson testified:

Linda met Dave when she was 18 and he was 21. (Tr___). She was a charter accountant, a Canadian equivalent to a CPA in the USA. She worked as a charter accountant in Canada until her first child was born in 1991. She then stayed home with the children until after the accident in March 2007.

(Tr 110).

They worked on home construction projects together. (Tr 111). They moved to Portland eight months before the accident when the oldest child was 7, the twins were 4, and the youngest was 2. They bought a six acre place in North Plains and they planned that Linda would stay home until the youngest child graduated from high school. Their plan was to do the work needed on the 5000 square foot home, plans were drawn, but no work has been done due to the accident. (Tr 113-114).

When Dave loses control, she has been afraid of him and the kids are afraid of him, and she is concerned for her young children. (Tr 115). She became the full time financial support of her family in November 2008. (Tr 116). Dave was in a “very dark place.” (Tr 116).

There is no communication. She is in a self-preservation mode, no wanting to trigger anger, trying to manage the family, and not set him off. (Tr 116). She confirmed Dr. Starbird’s report. (Tr 120;Ex. 10).

She took a pay cut to take a job nearer to home. (Tr 121).

Claimant swears at the kids, causing the children to feel crushed and causing a loss of society and companionship with him. (Tr 122). She feels there is a wall between her and Dave. (Tr 123). She is concerned about what will happen if she is walking on egg shells and one of the shells breaks. She is concerned with keeping the family together and if she leaves Dave, she is a bad wife and a bad mother if she stays. (Tr 124).

Dave is not the person she married. (Tr 125). She has lost her sense of sexual fulfillment. (Tr 126). She has considered divorce, but has not taken any steps. (Tr 126). She was psychologically evaluated by Jane Starbird, PhD. (Ex 10).

The Board stated “He [Mr. Sweek] acknowledges that he had not received several reports in the record in preparing his affidavit and disagreed with some of the accepted conditions.” ((ER 8; Tr 64).

The records Mr. Sweek did not review include:

A.Mr. Sweek did not review the Amended Notice of Acceptance dated February 4, 2014 accepting all the disabling conditions noted above under Summary of Argument #3. (Ex.19-146). He disputed Claimant suffered (1) post concussion syndrome; (2) post traumatic headaches; (3) convergence insufficiency; (4) cervical stenosis at C5-6, C6-7; (5) bilateral tinnitus. (Tr 63-64). He opined that Claimant had only a somatoform pain disorder and pain complaints not supported by physical findings, and any injuries would have been short term even a concussion that should have resolved in two to three months. (Tr 29-30).

B.Mr. Sweek had not been provided with the February 23, 2010 eligibility evaluation report. In his declaration,Mr. Sweek stated Claimant had been terminated due to the 2008 economic shut down and lack of work. (Ex 5). He repeated his opinion in testimony and disputes the testimony of the CEO of Claimant’s employer. (Tr 42). He relates Claimant’s inability to return to work to his somatoform disorder and emotional response. (Tr 47).

C.Mr. Sweek was not provided with a copy of the appraisal of economic loss from Walter Lierman, PhD, which calculated loss of household services in past years to $12,924 and future at $92,447, totaling $105,371. (Ex. 8-12). He admitted this loss could be considered in a loss of consortium claim. (Tr 47). It was not.