Worker Requested Medical Examination

By Kolbi Trebbien, Attorney at Law

ORS 656.325(1)(e) and OAR 436-060-0147(1) provide a way for an injured worker to request a medical examination with a physician selected by the Director, provided they meet the following requirements:

• The worker has made a timely request for a hearing on a denial of compensability;
• The denial is based on one more IME reports; and
• The workers’ attending physician or nurse practitioner does not concur with the report or reports.

There has been recent case law that may increase the frequency of WRME requests. First, based upon the language of the statute, it had long been understood the denial must have issued after the IME took place in order for a worker to request a WRME.  Recent case law has found that a worker is entitled to a WRME, regardless if the denial issues before or after the IME.

In Teitelman v. SAIF, 332 Or App 72 (2024), the Court of Appeals explained there was nothing in the text or context of ORS 656.325(1)(e) and OAR 436-060-0174(1) that required an IME be performed before the issuance of a denial.  The Court of Appeals looked to the phrase “one or more” IME reports, and explained multiple pre-denial IMEs would not be expected. Because of this, they believed the legislature intended both pre- and post-IME denials could be considered to meet the requirements for a WRME. Additionally, the legislature did not include explicit language that would have suggested they intended to limit the eligibility to only pre-denial IMEs. Finally, the Court of Appeals explained that the purpose of a WRME was to allow for an additional professional opinion when there were two competing professional opinions. Taking this all into account, the Court of Appeals concluded that both pre- and post-denial IMEs could make a worker eligible for a WRME, if all other criteria was met.

The Workers’ Compensation Board applied Teitelman in Daniel M. Brown, 76 Van Natta 324 (2024).  Like Teitelman, the injured worker made a request for a WRME based upon a post-denial IME.  The Board concluded the injured worker was entitled to a WRME, applying the reasoning of the Court of Appeals.

The Workers’ Compensation Board also discussed the eligibility for a WRME in Bret v. Barton, 76 Van Natta 211 (2024).  In Barton, the claim was denied for a right upper extremity condition.  The initial denial did not advise whether the denial was based upon an IME.  A second denial issued, advising claimant’s attending physician, Dr. El Bakri, had concurred with the IME.  Claimant requested a WRME, advising his current attending physician, Dr. Goodwin, had not commented on the IME report. The Workers’ Compensation Division and Administrative Law Judge concluded the claimant was not entitled to a WRME.  The Board reversed, explaining Dr. Goodwin was claimant’s attending physician and that silence could constitute a non-concurrence.

Based upon this case law, it can be anticipated there will be an uptick in the frequency of WRME requests.  As the Court of Appeals indicated in Teitelman, the purpose of a WRME is to allow for an unbiased third party appointed by the Director to provide an opinion on compensability when there is a dispute amongst the physicians.  Lately, our firm has observed injured workers requesting a WRME and waiting to see which physician the Director assigns to perform the examination.  If the Director assigns a physician the injured worker does not prefer, the worker does not follow through on scheduling the examination.  Unlike the requirements for an IME, the insurer currently does not have any recourse to compel attendance to the examination.

As always, please do not hesitate to contact the attorneys at Reinisch Wilson P.C. with any questions or concerns related to this information.