Fall 2013 Oregon Case Law Updates

Craig A. Olsen, 65 Van Natta 1976 (October 2013):

Facts:  Claimant underwent a Worker Requested Medical Examination (WRME).  After the examination, his attorney wrote to the examiner and requested an addendum report.  The employer denied payment for the addendum report.  Claimant requested a hearing.  The ALJ concluded that the employer was not required to pay for the bill and denied claimant’s request for penalties and related attorney fees.  Claimant appealed to the Board.

Holding:  The Board found the sole issue concerned whether the addendum report constituted an examination report under relevant statutes and rules.  Because the dispute pertained to a medical bill and whether the employer was responsible to pay the bill, the Board found this was not a “matter concerning a claim” and the Director had exclusive jurisdiction over the dispute.  The Board vacated the ALJ’s order and dismissed claimant’s hearing request.

Points to Remember:

  • The division of jurisdiction between the Workers’ Compensation Board and the Director can be confusing.  Here, the Board noted if the case had involved a dispute over claimant’s entitlement to a WRME, then the issue could have been addressed by the Hearings Division/Board under applicable statutes.  If you have questions about whether a dispute should be before the WCD or the Board, you should contact your defense attorney for clarification.
  • The absence of subject matter jurisdiction (i.e., whether the Director or the Board has authority to adjudicate) is fundamental and not waivable, and can be raised by anyone, including the tribunal itself, at any stage of litigation.


Joshua Mccuen, 65 Van Natta 1762 (September 2013):

Facts:  This is a noncooperation denial case.  Claimant filed an injury claim on October 24, 2012.  He provided a mailing address, which was his sister’s residence.  He did not have a phone or provide a phone number.  On October 30, 2012, the employer mailed a letter to claimant, requesting that he provide a recorded statement within 14 days.  Claimant did not respond.  On November 14, 2012, the employer asked the WCD to suspend claimant’s benefits.  A copy of the suspension request was sent to the claimant.  On November 16, 2012, the WCD notified claimant his benefits would be suspended in five days unless he contacted the employer and cooperated with its investigation.  Claimant made no contact.  The WCD issued a suspension of benefits order on November 28, 2012.  The post office returned the certified copy of the order as unclaimed, but the copy that was sent by regular mail was not returned.  On December 17, 2012, the employer denied the claim based on claimant’s noncooperation.  Claimant requested a hearing.  The ALJ upheld the denial.

Holding:  Claimant argued that the employer’s investigative demand was unreasonable because the employer asked him to call the examiner to schedule the statement—claimant asserted such request put the onus on the injured worker for investigative scheduling.  The Board disagreed and found the employer’s request reasonable, particularly given claimant’s lack of a phone.  Claimant testified at hearing that he did not receive any correspondence related to his claim until WCD’s November 28, 2012 suspension order.  The Board did not find claimant’s testimony to be persuasive, in large part due to the fact claimant received the employer’s checks for his temporary disability benefits at the same address.  The Board upheld the denial.

Points to Remember:

  • In order to issue a noncooperation denial, you must first seek a suspension of benefits with the Director.  This is a procedural requirement that must be fulfilled.
  • During your initial investigation of the claim, you should always document your effort in making contact with the worker to support the conclusion your investigation was reasonable.