Court of Appeals Case Underscores Need for Cooperation

Joe Di Bartolomeo
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Joe Di Bartolomeo is a top rated personal injury lawyer helping Oregon and Washington families
Posted on Oct 02, 2014

A recent Court of Appeals case underscores the importance of cooperating with the investigation of an on-the-job injury claim. In this case, the injured worker filed an on-the-job injury claim, and failed to respond to repeated requests to give a statement to an investigator. The Workers’ Compensation Board found that the injured worker failed to prove one of the exceptions that would allow an injured worker to overcome a denial based on “non-cooperation.”

The Oregon Workers’ Compensation statute provides that when an injured worker files a claim, that worker must cooperate with the insurance company and/or the employer in investigating the claim. This often involves providing a recorded statement, or attending insurance compelled medical examinations. In this case, the insurance company was unable to get the injured worker to respond to requests for an interview.

The injured worker claimed that because of a death in the family, and a non-work-related auto injury, she was not able to provide a recorded statement. However, the Court disagreed.

In order to overcome a “non-cooperation denial, the injured worker must show that she fully cooperated, failed to cooperate for reasons beyond her control, or that the insurance company’s demands for investigation were unreasonable. The Court found a couple the reasons that the injured worker failed to prove one of these exceptions.

First, the injured worker did not argue that the request for the recorded interview were unreasonable when she took her case to the Workers’ Compensation Board. The Court of Appeals found that because that argument was not made at the Board level of appeal, it cannot be made for the first time in front of the Court of Appeals. This is a basic rule when appealing administrative or court decisions. Essentially, someone appealing a decision is limited to the arguments made before the initial decisionmaker.

The second part of the Court’s reasoning dealt with the Board’s analysis of the facts. The Board found that the injured worker failed to show that she was diligent in responding to requests for investigative interviews. The Court of Appeals found that there was sufficient evidence to justify the Board, making this decision. In other words, the Court of Appeals was not going to take a fresh look at the evidence, but instead, was simply reviewing the evidence to make sure there were some facts to support the Board decision.

This case teaches a couple of lessons about the intricacies of making appeals. First, someone making an appeal cannot raise new arguments at the appeal level. It is not fair to argue that a trial court or an Administrative Law Judge made a mistake in responding to an argument it was not asked to consider. In addition, when the Workers’ Compensation Board makes a decision based on resolving a factual dispute, the Court of Appeals is not going to question how the Board weighed the evidence. Instead, the Court of Appeals will defer to the Board’s fact-finding, and will only review the decision to make sure there was some evidence that supported the Board outcome.

Appellate reviews bring special challenges, and if you have issues involving the appeal of a workers’ compensation claim denial, contact us at 503-325-8600. We have extensive experience appealing initial denials and Board denials.