Oregon Workers’ Compensation Board issues decision expanding right to WRME
On September 16, 2024, a WCB Order on Review, Jon C. Landry, 76 Van Natta 462 (2024), expanded on the Court of Appeals ruling in Teitelman v. SAIF to identify what qualifies as a “post-denial IME report” and when an attending physician does concur with the IME report which denial is deemed based on for the purposes of evaluating a Worker Requested Medical Examination request. The Board reversed ALJ Otto’s order in part for the denial of a (WRME) and vacated the order in so far as it upheld SAIF’s denial of claimant’s injury.
A worker is eligible for a WRME when the worker makes a timely request for a hearing on a denial, that denial is based on an IME report(s), and the worker’s attending physician/authorized nurse practitioner does not concur with the report(s). ORS 656.325(1)(e); OAR 436-060-0147(1). The attending physician/authorized nurse practitioner’s non-concurrence does not need to be an expressed non-concurrence and even the absence of concurrence is sufficient to meet this requirement. Bret V. Barton, 76 Van Natta 211, 220 (2024). The Court of Appeals recently held in Teitelman that when a carrier submits an IME report as evidence to support its denial, the denial is “based” on an IME such that the worker is eligible for a WRME under ORS 656.325(1)(e). Teitelman v. SAIF, 332 Or App 72, 73 (2024).
Here in Landry, claimant appealed a denied back injury claim. An IME doctor opined claimant’s condition was work-related but cast some doubt on causation due to claimant’s delay in treatment. SAIF issued a complete claim denial a week after the IME. The claimant’s treating provider never directly gave a non-concurrence to the IME report, but expressed a point of disagreement with the IME doctor’s concerns on a delay in treatment via reference in their chart note. Claimant requested a WRME. The IME doctor shifted his opinion to be against compensability three months after the denial in a response letter and again five months after the denial in a deposition, both were submitted as evidence for hearing. The Workers’ Compensation Division issued an Order denied the WRME request because the record failed to establish that the denial was based on an IME report. The ALJ determined that claimant was not entitled to a WRME and affirmed the WCD’s order denying the WRME. The Court of Appeals’ order in Teitelman v. SAIF is issued following the ALJ’s order.
The Board reversed the WRME denial because they believed the denial was based on an IME doctor’s post-denial opinions submitted as evidence against compensability for hearing as a “post-denial IME report” citing Teitelman. While the initial IME was in favor of compensability notwithstanding the IME doctor’s expressed doubt around claimant’s delay in treatment, the Board held the IME report taken with the IME doctor’s follow-up written response letter as well as a deposition transcript sufficiently meets the statutory requirement of an IME report per OAR 436-060-0147. The Board found claimant’s treating provider expressing disagreement around claimant delaying treatment in their chart note was a sufficient non-concurrence to justify a WRME request per OAR 436-060-0147 as well. Because the Board reversed the WCD’s denial of a WRME, the portion of ALJ’s affirming the insurer’s claim denial was vacated.
In Teitelman, a post-denial IME report was sufficient to say the denial was based on an IME as the regulatory framework for requesting a WRME requires, but here in Landry the Board goes further in their ruling and takes minor aspects of a pre-denial IME which ultimately supported compensability, that same IME’s doctor’s response letter separate from the pre-denial IME and that doctor’s deposition transcript collectively as an IME the denial can be based on following denial because they were all submitted as evidence against compensability. The Board also held a treating provider’s disagreement by brief reference in a chart note regarding the IME doctor’s uncertainty around claimant’s treatment timeline from an IME report that otherwise supported compensability sufficiently meets the non-concurrence requirement for a WRME request as well.
Landry takes the holding in Teitelman further by allowing a WRME to be based on a collection of documents that are not IME reports be treated as a post-denial IME report on which the insurer’s denial is based as well as allows an attending physician/nurse practitioner’s written disagreement with a minor part of an IME report in their own chart note to be liberally construed as a sufficient non-concurrence to justify approving a WRME request.
Posted by Kieran MacIntyre.
