Oregon high court clarifies process for worker-requested exam

Injured workers are entitled to request their own exam if an insurer relies on results of its independent evaluation to contest the claim, Oregon’s Supreme Court ruled, clarifying current state law that allows injured workers to request a second exam only when a claim is denied based on the compulsory first exam.

As documented in Matter of the Compensation of Thomas K. Cardoza, Thomas Cardoza alleged that he injured his back while working for Werner Gourmet Meat Snacks Inc. SAIF Corp., the company’s comp insurer, denied that his injury arose from employment.

Upon his request for a compensability hearing, SAIF requested an independent medical examination (IME), which concluded that a preexisting back condition was the major cause of any disability or need for treatment.

Mr. Cardoza’s treating physician disagreed, and Mr. Cardoza requested a second evaluation.

The Medical Resolution Team of the state’s workers comp division denied the request, saying the IME was not the basis for the denial because it took place after SAIF provided written notice denying the claim.

An administrative law judge denied the worker-requested medical exam, saying the IME report was persuasive evidence that Mr. Cardoza did not have a compensable claim. The Workers’ Compensation Board affirmed.

An appellate court reversed the board, and the Oregon Supreme Court affirmed that decision Thursday. The high court wrote that “(d)enying a worker the opportunity to get a medical examination that the worker could use to contest the insurer’s IME report based solely on the timing of the insurer’s IME request seems to favor the insurer.… And a decision-making process that relies on an IME report prepared by a doctor selected by the insurer, and disputed by the worker’s doctor, without allowing another medical examination at the worker’s request by a doctor approved by the board, does not seem to be very impartial and balanced.”

Two justices dissented, saying the majority might be correct that a denial can be viewed as a persistent status that changes over time, but that doesn’t appear to be how lawmakers used the word in the statute authorizing worker-requested exams.

“That statute contemplates that a ‘denial’ means the decision to deny the claim, with the corresponding notice to the claimant stating the basis for that decision,” the dissent says.

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