Oregon Workers’ Compensation Board Signals That Providing Duplicative Discovery May Result in Penalties/Attorney Fees
In Serge Alexandre, 74 Van Natta 410 (June 1, 2022), SAIF requested review of an order that awarded a penalty and penalty-related attorney fee for allegedly unreasonable claim processing regarding duplicative discovery. The Board held that claimant had not raised a penalty issue at the hearing level regarding allegedly unreasonable claim processing for duplicative discovery. Accordingly, the Board reversed the penalty for unreasonable claim processing.
Board Member Ceja wrote a specially concurring opinion to express his concerns regarding the manner in which the carrier provided discovery. Board Member Ceja noted that the carrier produced over 10,000 documents that were largely duplicative. On one occasion, the carrier produced approximately 5,000 pages of medical records, but only 34 were new. In addition, the carrier included the same 827 Form 87 times. Member Ceja stated that such a practice could delay the proper disposition and payment of claims for injured workers.
Providing discovery and avoiding disclosure of duplicative records can be challenging especially in cases with extensive treatment. Good faith efforts to avoid excessive duplication will likely avoid penalties. Identifying duplicative processing documents such as 827 forms and notices of acceptance is a good starting point but identifying duplicative medical records will require carriers to examine their discovery practices.
As always, if you have any questions concerning discovery obligations please feel free to contact me at or 503-595-2136.