Oregon Workers’ Compensation: Does it make sense for an insurer to appeal its own Notice of Closure?
In Oregon, the attending physician plays a crucial role throughout the duration of a workers’ compensation claim. For better or worse, the importance of the attending physician is especially evident when it comes to claim closure. Unless the worker is actively engaged in an authorized training plan, the insurer must issue a Notice of Closure on an accepted disabling claim when medical information establishes there is sufficient information to determine the extent of permanent disability and indicates that the worker is medically stationary. OAR 436-030-0020(1)(a).
More often than not, the worker’s attending physician will determine when the worker is medically stationary. However, the attending physician is not the sole authority when it comes to determining medically stationary status. OAR 436-030-0035(1)(a) provides a worker is medically stationary when the attending physician, authorized nurse practitioner, or a preponderance of medical opinion declares that all accepted conditions and direct medical sequelae of accepted conditions are either “medically stationary” or “medically stable” or when the provider uses other language meaning the same thing.
Conversely, the attending physician has the final say when determining the extent of permanent disability prior to claim closure. When there is a reasonable expectation of permanent disability, a closing medical examination and report are required. OAR 436-030-0020(2)(b). The attending physician must provide or concur with the closing report. OAR 436-030-0020(2)(b)(A). In practice, this means an independent medical examination cannot be used to determine a worker’s permanent impairment unless the attending physician concurs with the report.
An attending physician may also opt to perform their own closing examination. The attending physician’s objective findings will then provide the basis for determining permanent disability awarded in the Notice of Closure. There is no preponderance of the medical opinion exception to rebut the attending physician’s findings. Depending on the attending physician, this can lead to permanent partial disability awards that are exorbitant or contrary to the opinions of other medical experts.
However, the insurer has recourse if it thinks the permanent partial disability award does not accurately reflect the injury sustained. The insurer may request reconsideration of its own Notice of Closure to challenge the impairment findings used to rate permanent disability. The insurer must do so quickly, as the reconsideration request must be filed within seven (7) days of the mailing date of the Notice of Closure. OAR 436-030-0145(1)(b). A worker, on the other hand, has 60 days to request reconsideration. OAR 436-030-0145(1)(c).
An examination by a medical arbiter is mandatory when there is an objection to the impairment findings used to rate permanent disability. ORS 656.268(8)(a) When a medical arbiter is used, impairment is established based on the objective findings of the medical arbiter, except where a preponderance of the medical evidence demonstrates that different findings by the attending physician, or impairment findings with which the attending physician concurred, are more accurate and should be used. OAR 436-035-0007(5)(b). However, absent persuasive evidence to the contrary, the Worker’s Compensation Board is not free to disregard the medical arbiters’ findings. Hicks v. SAIF, 194 Or App 655, recons, 196 Or App 152 (2004).
In a recent Oregon case, Angelita Romera-Depaz, 76 Van Natta 450 (2024), the Administrative Law Judge affirmed an Order on Reconsideration that did not award permanent partial disability. Relying on the findings of Dr. Benz, the medical arbiter, the ALJ found the record did not persuasively establish an error in the reconsideration process. On review, claimant sought a permanent partial disability award based on her attending physician’s findings. The Workers’ Compensation Board noted Dr. Benz provided an unambiguous opinion based on an accurate history, thorough examination, and review of the pertinent medical records. The Workers’ Compensation Board considered Dr. Benz’s opinion well explained. The Workers’ Compensation Board affirmed the ALJ’s Order, and consequently affirmed the Order on Reconsideration that did not award permanent partial disability.
If you have any questions about whether it makes sense for the insurer to request reconsideration of its own Notice of Closure, you can contact me at or at (503) 776-5431.
Posted by Eric Berglund.
