Denying an Oregon Claim Based on an IME? Read This!
At this point, you can probably issue a claim denial in your sleep. You know the denial must state the factual and legal reasons for the denial (OAR 436-060-0140(8)(a)) and must contain, in prominent or bold-face type, notice regarding the worker’s rights to an appeal (OAR 438-005-0055). You also know that if the denial is based “in whole or in part” on an independent medical examination, you must state as much in the body of the denial (OAR 436-060-0140(8)(a)). You also must indicate whether the attending physician agreed with the independent medical examination report. Here, the rules provide one of three statements that must be utilized when advising whether the attending physician agreed with the report. The denial must state:
“Your attending physician agreed with the independent medical examination report”; or
“Your attending physician did not agree with the independent medical examination report”; or
“Your attending physician has not commented on the independent medical examination report.” OAR 436-060-0140(8)(b).
Legal precedent establishes an employer/insurer must strictly comply with an administrative rule when that rule specifically and unambiguously requires they follow a certain procedure. See: SAIF v. Robertson, 120 Or App 1, 5 (1993). Thus, one of the three quoted statements outlined above must be included in the denial if it is based in whole or in part on an independent medical examination.
The rules further require that if subparagraph (ii) or (iii) above applies, then the notice must include the division’s website address (https://wcd.oregon.gov/Pages/index.aspx) and toll-free number (1-800-452-0288) for the worker’s use in obtaining a brochure about worker requested medical examinations. OAR 436-060-0140(8)(b)(B).
Finally, all denials must inform the worker of the Expedited Claim Service and of the worker’s right to a hearing under ORS 656.283. If you have any questions regarding denials based on Independent Medical Examinations, please do not hesitate to contact me at 503-412-3116 or .