In Oregon, Delay In Seeking Clarification From Attending Physician Regarding an IME, PCE, and Regular Work Release Can Result in Unreasonable Refusal to Close.
The Oregon Workers’ Compensation Board is holding carriers to a high standard when it comes to securing the evidence needed to rate impairment and work disability. The expectation is the carrier will arrange the closing examination, physical capacity evaluation and then ensure the attending physician provides a clear and unconditional concurrence with impairment findings and work restrictions.
For example, in William Garwood, 76 Van Natta 206 (April 9, 2024) the Board revered a portion of the ALJ’s Order that did no award penalties for the carrier’s allegedly unreasonable refusal to close the claimant’s injury claim. In Garwood, the attending physician concurred with impairment findings determined in an IME. However, the attending also stated claimant was not medically stationary and needed a PCE. Eventually, the attending agreed with some of the impairment findings in both the IME and PCE – “Permanent impairment per IME/WCE/PCE.” The impairment findings contained in the IME and PCE were inconsistent. The carrier waited almost two months to seek clarification from the attending. The claims adjuster testified the delay was due in part to the fact the parties were discussing settlement.
In Garwood, the facts indicate the attending physician took a secondary role in securing impairment findings and waited for the carrier to arrange all examinations. The attending physician also provided inconsistent impairment findings and work restriction. However, Board ultimately concluded the attending’s short comings did not justify the carrier’s delay in seeking clarification. The Board awarded a 25% penalty.
The administrative rules clearly define a more active role for the attending physician. For instance: “when a worker becomes medically stationary . . .the attending physician must complete a closing exam or refer the worker to a consulting physician for all or part of the closing exam.” Furthermore, “the attending physician must specify the worker’s residual functional capacity if . . .the attending physician has not released the worker to the job held at the time of injury . . . .” OAR 436-010-0280.
Securing sufficient information to rate impairment and work restrictions can be a monumental task especially when the attending does not understand or ignores their role. Nevertheless, it is important to recognize that the Board has set a high standard for carriers and expects timely scheduling of closing evaluations and communication with the attending. If you encounter a difficult attending physician who does not provide clear findings after your reasonable attempts to obtain the findings, consider involving the Oregon Workers Compensation Division – Medical Resolution Team (MRT). The MRT may be able to intervene and help educate the attending on what is required of them when they take on the role of attending physician.
If you have questions about closing difficult claims or other claim issues, you can contact me at or (503) 595-2136.
Posted by Steve Verotsky.
