OREGON: When post-denial IME reports are submitted as evidence at hearing to bolster denial, Court of Appeals declares denial is based on the post-denial IME report.
On April 17, 2024, the Oregon Court of Appeals issued a ruling in Teitelman v. SAIF that a Worker Requested Medical Examination (WRME) can be based on a post-denial IME that was submitted into evidence by the insurer to bolster a denial.
WRMEs are governed by ORS 656.325(1)(e) and OAR 436- 060-0147(1), which entitle workers to an examination by a physician selected by the Director of DCBS at the carrier’s expense. The three requirements for entitlement to a WRME are: (1) The worker must make a timely request for hearing on a denial of compensability; (2) The denial must be based on the report of one or more independent medical examinations; and (3) The attending physician or authorized nurse practitioner must not concur with the report or reports.
In Teitelman, claimant appealed a denied back injury claim. The insurer requested claimant submit an Independent Medical Examination (IME). The IME that claimant submitted supported the insurer’s denial. Claimant’s attending physician did not concur with the IME report. Claimant then submitted a request for a WRME. Because the denial occurred before the IME, The Workers’ Compensation Division found the denial could not be based on the IME. The assigned Administrative Law Judge and the Board agreed with The Workers’ Compensation Division, specifically basing their decision on the fact that the IME had not occurred at the time the denial issued, so it couldn’t be based on the IME.
The Oregon Court of Appeals reversed the Board’s decision, noting that ORS 656.325 does not textually, nor contextually, require an IME to be performed before a denial is issued in order for the denial to be based on an IME. The Court noted the purpose of the status is to provide the worker with an additional medical opinion where the medical reports are not in concurrence and that purpose would be frustrated by an interpretation that WRMEs are limited to circumstances where the IME takes place before the denial. Additionally, the court concluded the legislative intent to provide access to a WRME would be frustrated if access did not extend to post-denial IMEs submitted into evidence by the insurer to support a denial.
Overall, the Oregon Court of Appeals held that when the carrier submits the post-denial IME report as evidence at the hearing to determine whether the denial should be upheld, the denial is based on the IME report. This decision overturned previous Board decisions in which the Board held that a denial cannot be “based on” an independent medical examination report if the examination is conducted after the denial. (Julie Dellinger, 72 Van Natta 35 (2020); Thomas S. Cardoza, 73 Van Natta 561 (2021); and Michelle L. Knowlden, 75 Van Natta 505 (2023)).
The Teitelman case has a direct effect on the overall workers’ compensation system, as it now allows a Worker Requested Medical Examination (WRME) to be based on a post-denial IME submitted into evidence by the insurer to support a denial.
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Posted by Jessica Fox.
