Oregon WCB Confirms, No Compensable Claim: No Rule Violation, No Unreasonable Delay
In a recent legal decision, Rosita E. Peery, 77 Van Natta 15 (January 10, 2025), the Oregon Workers’ Compensation Board affirmed an Administrative Law Judge’s (ALJ) ruling, upholding the denial of a worker’s injury and occupational disease claim for a right shoulder condition. The case also addressed whether the worker was entitled to penalties and attorney fees due to an alleged delay in providing an independent medical examination (IME) report.
The worker sought review of an Administrative Law Judge’s Order on Remand, which upheld the denial of the worker’s right shoulder injury/occupational disease claim and declined to award a penalty or penalty-related attorney fee for an alleged failure to timely provide an IME report to the claimant’s attending physician.
On review, the Board considered three main issues: compensability of the right shoulder condition, potential penalties for claim processing violations, and attorney fees related to the alleged violations.
The ALJ’s findings of fact were adopted, and the Board affirmed the decision finding a lack of sufficient evidence to establish that the carrier failed to provide the IME report within the required timeframe under OAR 436-060-0095(5). OAR 436-060-0095(5) requires the insurer or self-insured employer to provide a copy of the IME report to the worker’s attending physician within three business days of receiving it. Failure to comply with this rule may lead to penalties or attorney fees under ORS 656.262(11)(a) if the violation results in an unreasonable resistance to compensation payments or an unreasonable delay in claim processing.
In Peery, the Board confirmed the claim was not compensable. Accordingly, there was no delay or resistance to compensation, making penalties and attorney fees unwarranted. Prior rulings, such as Randall v. Liberty Northwest Ins. Corp., 107 Or App 599, 605 (1991) and Dragan Halilovic, 58 Van Natta 2236, 2240 n1 (2006), reinforced that penalties cannot be awarded where no compensation was due.
The ruling in Rosita E. Peery highlights the importance of thorough claim investigations to uphold denials and the timely submission of IME reports and other discovery. While a penalty may not be awarded for a violation of discovery requirements under OAR 436-060-0095(5) where a claim is ultimately found non-compensable— the timely submission of required documents is essential to avoiding unnecessary disputes.
At SBH we are ready and able to answer any questions you may have regarding discovery and claims management. If you need to any further guidance, please feel free to contact me at (971) 867-2728 or cjoseph@sbhlegal.com.
Posted by Christina Joseph.
