OTLA Trial Lawyer Winter 2021

58 Trial Lawyer • Winter 2021 Comp Corner App 94 (2005) (citing Keller, infra , and Argonaut Ins. Co. v. Mock , 95 Or App 1, 5, (1989). ORS 656.310(1)(a) provides a rebut- table presumption that an injured worker gave timely notice. The burden is on the employer to rebut that presump- tion. Because ORS 656.265(2) allows a worker to provide oral notice and then requires the employer to furnish a copy of that report, the Board interprets the two statutes to require the employer to create a written report of the worker’s oral notification and then furnish it to the worker. Azam Ansarinezhad, 71 Van Natta at 1009 n 2. When the employer fails to do this, it will not rebut the pre- sumption of timely notice. Id. Knowledge or no knowlege Knowledge by a supervisor of his or her own injury is not knowledge of the employer. See Sharon N. Kay, 54 Van Natta 1582 (2002); RichardW. Green, 44 Van Natta 152, 153 (1992). Knowledge of an injury must include that it is work- related. J. Bradley Ross, 58 Van Natta 1714 (2006). If notice of an accident is given within the 90 days, then there is no deadline for filing the claim. Pedro O. Peraza, 63 Van Natta 2227 (2011). If sufficient notice of the accident was not given, then ORS 656.265(4) pro- vides exceptions. ORS 656.265(4)(a) allows an injured worker to file a claim within one year, if the employer had knowledge of the injury within the 90 days. Keller v. SAIF , 175 Or App 78 (2001). ORS 656.265(4)(c) allows an injured worker to file a claim within one year if the worker had good cause not to provide the notice of accident within 90 days. By Julene Quinn OTLA Guardian O RS 656.265 is the applicable statute. However, practitioners should be aware ORS 656.310(1) (a) provides a rebut- table presumption that timely notice of the accident was given. This matters for the burden of proof. Godfrey v. Fred Meyer Stores, 202 Or App 673 (2005), held that an oral re- port secured by the employer from the worker that contains the required in- formation satisfies the reporting of accident requirement. The notice is sufficient if it “provides enough details about the when, where and how of an injury to put an employer on notice that the injury may be compensable and thus that an investigation may be advisable.” Vsetecka v. Safeway Stores , Inc., 337 Or 502 (2004). The notice requirement of ORS 656.265 (1)(a) includes notice of ac- cident only, not the specific filing of a claim. Jose Amador, 59 Van Natta 2115 (2007). “An oral statement or report from a worker is sufficient to establish notice of an accident resulting in an injury or death under subsection (1) if it is provided to the employer within 90 days of the accident and it includes enough facts to indicate some likeli- hood that the accident involved a compensable injury.” Azam Ansarine- zhad, 71 Van Natta 1003, 1009 (2019); Godfrey , 202 Or App 673; see Safeway Stores, Inc. v. Angus , 200 Or Timely Notice of Injury Issues & Topics for the Workers’ Compensation Attorney Julene Quinn Fear of being terminated qualifies as good cause. Kuralt v. SAIF , 290 Or App 479 (2018); Andrew Kuralt, 71 Van Natta 194 (2019). The court held that claimant need not establish fear of termination by showing an actual threat of being terminated. Kuralt , 290 Or App at 483. What the worker believes “Good cause” is also established when the worker believes there was no potentially compensable injury, be- cause no medical treatment was needed and no disability would result from the work event. Juan Estrada, 69 Van Natta 71 , 76 (2017). The board applies the “reasonable worker” stan- dard to determine “whether the work- er knew of enough facts to lead a rea- sonable worker to conclude that workers’ compensation liability was a reasonable possibility and that notice to the employer was appropriate.” Id. at 74. As part of that analysis, the board will consider the worker’s circum- stances and the nature of the accident and subsequent symptoms. Id. at 74- 75. However, the Board is fairly strict when it comes to “good cause” and does not excuse late notice even when a worker believes the injury is not significant or only requires home first aid. See Raymond A. Johnson-Chandler , 71 Van Natta 1067 (2019). Julene Quinn is an appellate attorney who focuses on workers’ compensation. She contributes to OTLA Guardians of Civil Justice at the Sustaining Member level. Her firm is Julene M. Quinn LLC, Box 820087, Portland, OR 97282. She can be reached at 971-259-8141 or julene.m.quinn@gmail.com.