Workers' Compensation Board Allows New Evidence

Posted on Jan 16, 2015

An “Own Motion” claim is a type of Oregon Workers' Compensation claim that allows an injured worker to reopen a workers’ compensation claim that has been closed for more than five years. In this recent Board case, the claim was reopened, but there was a dispute about whether or not the injured worker was entitled to additional permanent partial disability. (Permanent partial disability is a cash benefit available to an injured worker as compensation for lost earning capacity.)

In this case, the Board reviewed various medical opinions, and rejected a treating physician’s opinion regarding the extent of the injured worker’s permanent partial disability. However, in making that decision, the Board did not have a chart note from the treating physician. The injured worker, through his attorney, submitted the additional chart note. The insurance company objected.

The Board found that it was appropriate for the injured worker to submit the medical record. In making this decision, the Board explained that the rules require the insurance carrier to provide the injured worker with “all evidence that pertains to the claimant’s compensable condition at the time of the closure, including any evidence relating to permanent disability.” The Board found that it was inappropriate for the insurance company to argue that a chart note should not be submitted when the insurance company was required to provide the injured worker with the very same chart note.

The Board then went on to decide the actual issue, which was the extent of the injured worker’s permanent partial disability. Even with the new chart note, the Board felt that he had correctly decided the issue of permanent partial disability when the claim was closed. In making this decision, the Board explained that the new chart note failed to explain the physician's change in opinion.

Medical opinions are a central part of the workers’ compensation system in Oregon. This could include an opinion on whether the work activity caused a certain medical condition, or whether an injured worker, like in this case, has a permanent partial disability. If a physician changes his or her mind, the Workers’ Compensation Board will discount that physician’s medical opinion unless there is adequate explanation for a change of heart. For example, if a physician reviews new medical evidence that he or she did not have when giving an opinion that new information will sometimes justify a change of opinion.

If you have a workers’ compensation case involving medical opinions, and need to know where you stand, call us at 503-325-8600. We can evaluate your claim file and explain your options. We only earn a fee if we are successful in pursuing and obtaining benefits that you were denied or underpaid.