SAIF Corp. v. Dubose

88 P.3d 933, 193 Or. App. 62, 2004 Ore. App. LEXIS 452
CourtCourt of Appeals of Oregon
DecidedApril 14, 2004
Docket97-01993; A103853
StatusPublished

This text of 88 P.3d 933 (SAIF Corp. v. Dubose) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SAIF Corp. v. Dubose, 88 P.3d 933, 193 Or. App. 62, 2004 Ore. App. LEXIS 452 (Or. Ct. App. 2004).

Opinion

LINDER, J.

This case is before us on remand from the Oregon Supreme Court. Previously, we concluded that claimant had failed to avail herself of the appropriate procedure for challenging SAIF’s noncooperation denial and that she therefore was not entitled to a contested case hearing challenging that denial. SAIF v. Dubose, 166 Or App 642, 999 P2d 529 (2000). The Supreme Court reversed our decision and remanded the case to us for resolution of SAIF’s remaining assignments of error. SAIF v. Dubose, 335 Or 579, 74 P3d 1072 (2003). We affirm the order of the Workers’ Compensation Board setting aside SAIF’s denial.

On remand, two issues remain for our resolution. The first is SAIF’s contention that its noncooperation denial should have been upheld because claimant did not adequately prove that her failure to cooperate with its investigation was for reasons beyond her control. To place that contention in perspective, some factual background beyond that set forth in our prior opinion is helpful.

After claimant filed her claim for workers’ compensation benefits, SAIF, as the employer’s insurer, neither denied nor accepted the claim. Instead, SAIF began an investigation to determine its compensability. As part of that investigation, SAIF scheduled an insurer medical examination (IME) for January 3, 1997. Claimant was advised that she was required to attend that examination and that, if she did not, her benefits could be suspended and her claim could later be denied. On the scheduled date of the IME, bad weather made road conditions sufficiently treacherous that the state police advised motorists to avoid travel if possible. Claimant therefore did not attend the IME.

On January 14,1997, SAIF asked the Department of Consumer and Business Services (DCBS) to authorize suspension of claimant’s potential benefits because of her noncooperation with SAIF’s investigation. See ORS 656.262(14).1 [65]*65DCBS sent claimant a notice advising her that her benefits would be suspended five days after the date of the notice unless (1) SAIF advised DCBS that claimant was cooperating with SAIF’s investigation, or (2) claimant documented that her failure to attend the IME was reasonable. Because neither of those things occurred, DCBS issued an order suspending claimant’s benefits pursuant to ORS 656.262(14). In the order of suspension, DCBS advised claimant that the suspension would continue until she “cooperates with the insurer’s investigation of the claim by attending the medical examination requested by the insurer.” DCBS further advised claimant that SAIF could deny her claim if she failed to cooperate “for an additional 30 days” after the notice of suspension (i.e., within 30 days of January 24,1997).

On February 25, 1997, SAIF issued a “noncooperation denial” of claimant’s claim. In SAIF’s denial, it stated:

“You were required to attend a[n IME] on December 18, 1996. You did not attend that examination so we rescheduled your exam for January 3, 1997. You also failed to attend that exam so SAIF requested suspension of your benefits which was granted by the Worker [’s] Compensation Division on February 6, 1997. You were ordered to notify and comply with SAIF Corporation to attend an examination within 30 days of the Division’s January 24, 1997 notice of suspension to you.
“Since we have not heard from you, we are therefore denying your claim for benefits for your failure to cooperate per the February 6,1997 suspension order.”

When SAIF issued that denial, claimant had taken no steps to advise SAIF why she did not attend the IME on January 3, 1997. Claimant requested a hearing to challenge SAIF’s denial. One week before the scheduled date of the hearing, SAIF learned for the first time that claimant did not attend the January IME due to the bad weather and hazardous road conditions.

[66]*66The administrative law judge (ALJ) set aside SAIF’s denial, finding that claimant’s failure to attend the January IME was due to circumstances beyond her control and that claimant had not otherwise failed to cooperate with SAIF’s investigation of the claim. In affirming the ALJ’s order, the board adopted the ALJ’s reasoning. SAIF petitioned for reconsideration, arguing that claimant’s noncooperation was not limited to her failure to attend the January IME. Rather, according to SAIF, during the 30-day suspension period, claimant was also obligated to cooperate with SAIF’s investigation of her claim by advising SAIF of her reasons for not attending the January IME and by contacting SAIF during the suspension period to ask that her IME be rescheduled. The board rejected SAIF’s arguments:

“[W]e are not convinced by SAIF’s argument on reconsideration that claimant failed to cooperate with an investigation for the 30-day period following issuance of the Order Suspending Compensation. That is, even accepting SAIF’s argument that the statute requires claimant to provide evidence concerning her conduct during this period, we find an absence of proof that claimant failed to submit to an information gathering technique. For instance, claimant was not scheduled for another IME, nor did SAIF ask claimant to participate in a personal or telephonic interview.”

(Emphasis in original.) In a footnote, the board emphasized that SAIF had not initiated any contact with claimant from the date of the suspension order until it issued its noncooperation denial. The board added, “In light of such circumstances, we are not persuaded that SAIF’s ‘post-suspension notice’ efforts were sufficient to provide notification to claimant that SAIF continued to request her cooperation in the investigation process.”

In challenging those aspects of the board’s order, SAIF renews the arguments that it made below. Specifically, SAIF argues that, under ORS 656.262(13), claimant was obligated to cooperate fully, which included “advising SAIF of the reasons for failing to attend the IME and advising SAIF that she is now willing to cooperate.” We agree with the board, however, that SAIF’s argument fails.

[67]*67In particular, we agree with the board that claimant’s failure to explain why she did not attend the IME did not breach her duty of cooperation under ORS 656.262(13), which provides, in part:

“Injured workers have the duty to cooperate and assist the insurer or self-insured employer in the investigation of claims for compensation. Injured workers shall submit to and shall fully cooperate with personal and telephonic interviews and other formal or informal information gathering techniques.”

The statute expressly describes the duty to cooperate as a duty to cooperate in the investigation of claims for compensation. As the board reasoned, SAIF’s insistence that claimant advise SAIF why she did not attend the January 3 IME was not part of an investigation of her claim for compensation:

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Related

SAIF Corp. v. Dubose
74 P.3d 1072 (Oregon Supreme Court, 2003)
SAIF Corp. v. Dubose
999 P.2d 529 (Court of Appeals of Oregon, 2000)
Lewis v. CIGNA Insurance
87 P.3d 698 (Court of Appeals of Oregon, 2004)
SAIF Corp. v. Wart
87 P.3d 1138 (Court of Appeals of Oregon, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
88 P.3d 933, 193 Or. App. 62, 2004 Ore. App. LEXIS 452, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-dubose-orctapp-2004.